The Norwood, Ohio Eminent Domain Trial

June 2004

The Norwood, Ohio Eminent Domain Trial:

By Scott Bullock

Eminent domain trials are one of the biggest litigation challenges we face at the Institute for Justice. Eminent domain cases always go to trial and the judge inevitably puts them on a very fast track. This means we must rally enormous amounts of energy and resources in a very short period of time (always against adversaries with virtually unlimited resources) if our clients are to have any hope of defeating the powerful interests on the other side.

Nowhere was this more evident than in our weeklong eminent domain trial in Cincinnati, Ohio, that took place in April. The case concerns a challenge to another bogus “blight” designation of a perfectly fine middle-class neighborhood of homes and small, locally owned businesses. In this case, developer Jeffrey Anderson, who has $500,000,000 in assets, wishes to expand two shopping plazas that he already owns by building “Rookwood Exchange,” a complex of private office buildings, high-end apartments and chain stores in Norwood (a suburb of Cincinnati). A group of home and business owners refused to sign contracts with Anderson; they instead simply wanted to keep what was rightfully theirs.

Unable to obtain the properties voluntarily, Anderson asked Norwood’s City Council to pursue an urban renewal study of the area to see if the neighborhood was “blighted.” Anderson demanded and paid for the study and, on the basis of this work, the City absurdly declared that the neighborhood was “blighted/deteriorated” and “deteriorating.”

At the Norwood, Ohio, eminent domain trial were (from left to right) client Dr. David Dahlman, client Mary Beth Wilker, supporter Betty Howard, IJ attorney Dana Berliner, client Nick Motz, client Joy Gamble, attorney Jim Harberson, IJ attorney Scott Bullock, and clients Carl Gamble and Joe Horney.

Of course, the blight designation was a fraud. The study admitted that none of the homes was dilapidated or delinquent on taxes. And the supposed problems with the neighborhood, such as the design of the streets and the increased traffic from the near-by developments, were created either by the City or Anderson’s other projects.

Everyone knows why the study was done: in Ohio, you need an urban renewal plan in order to condemn property for redevelopment. Adding to the charade, Anderson agreed to reimburse the City for the costs of acquiring the property and agreed to pay the City’s legal fees if the eminent domain case went to trial. Thus, the City rented out its eminent domain authority—one of the most awesome powers government has at its disposal—to a private party. Call it government by the highest bidder. The Institute for Justice was determined to stop this outrageous abuse of eminent domain.

Given the nature and complexity of the case, it should not have gone to trial for probably almost a year. However, because of Ohio’s unfair eminent domain laws—that put on a fast-track cases where someone dares to challenge the use of eminent domain—we were given a little more than four months to prepare our case.

Even though we were on a lightning-fast schedule, we did what we at IJ always do: everyone pulled together as a team to ensure that we had what it took to present the most persuasive, compelling case possible.

Not only did we pull together at IJ, but our clients and supporters did the same thing on the ground in Cincinnati. They held a rally on the first day of the trial. As we walked to the courthouse that day, we wondered how many people could possibly turn up on an unseasonably cold day at the start of a workweek. What a tremendous sight it was to see a large group of people standing on the courthouse steps—an American flag waving, anti-eminent domain banners held high. They all applauded as we approached and I grabbed the bullhorn to thank them for being there and for the support they had shown the property owners and us throughout this case.

The courtroom that day was so packed that the bailiff had to demand that dozens of people wait out in the hall. Three cameras lined the back of the room. This was it.

We started off with a high-risk strategy but one that we thought was important and necessary for properly setting up the case. We began our presentation with witnesses that we called from the City and the developers. We knew they were going to be hostile and uncooperative, and I was, frankly, a bit nervous about beginning with them. Then I remembered right before I was about to begin my questioning that this was one of the great things about being a lawyer at IJ and one of the reasons why I went to law school: to confront enemies of freedom head-on. Not just to talk about protecting individual liberty, but to hold people who would violate others’ rights accountable for their actions in court. The strategy paid off. We got the evidence we wanted from the reluctant witnesses, including the fact that it was the developer, not the City, that first proposed doing an urban renewal study for the area.

My co-counsel, Dana Berliner, did an incredible job in a very short period of time preparing for the expert witnesses in the case—the City’s and ours. Contrasting with the angry tone and style of the Norwood city attorney, Dana asked penetrating, often devastating, questions of witnesses in a soft, polite voice. And when one of the City’s witnesses was less than forthcoming, Dana would pause, and you could almost see the gears in her razor-sharp mind turning as the witness anxiously waited for the follow-up question that would inevitably pin him or her down.

Trials are exhausting, exhilarating experiences that always involve unexpected turns and challenges. This trial was no exception. When the City made a foolish (and ultimately rejected) motion to exclude one of our expert witnesses, staff attorney Bert Gall stayed up all night in our headquarters in Washington, D.C., to write a brief that tore apart the City’s claim. Our paralegal Gabriel Hudson was so exhausted after days and nights of preparing thousands of pages of documents for the trial, he literally fell asleep while ironing his shirt for the next day. (Thankfully, no serious injury occurred!)

Perhaps the emotional highpoint of the trial came when our client Joy Gamble took the stand. She and her husband Carl are now retired and have lived in the same house in this neighborhood for 35 years. Mrs. Gamble is a sweet, caring woman who simply does not deserve the treatment that she has received from her city government and the developers who are after her property. On a personal note, she reminds me of my own grandmother, who passed away just a few years ago, and it was difficult to ask her questions on the stand about the City’s efforts to throw her out of her home. At the end of her testimony, I asked her why she wanted to keep her home and this is what she said: “All of our memories are there. We’re rooted there. We do not want to be uprooted. We want to stay right here until we’re carried out feet first.” I don’t think there was a dry eye in the courtroom. And when the attorney for the City, who had just gone after several of the other property owners with accusatory questions, rose to cross-examine Mrs. Gamble, he must have felt the collective vibe in the room that implied, “Don’t you dare go after her.” He paused before he walked toward the podium, then said, “No questions,” and sat back down in his chair.

In our property rights cases, the Institute for Justice fights not only for legal principles and to establish the proper boundaries for eminent domain, we also fight to protect the Carl and Joy Gambles of the world. What Norwood is doing to this couple—and what so many other governments do to their citizens through eminent domain abuse—is immoral, and it must be stopped. The Norwood trial demonstrated the lengths to which governments will bend the law and abuse their powers in order to seize property for private development. It also demonstrated to everyone in the courtroom the human cost of the government’s shameful actions. We hope our work at IJ will ultimately show that so long as there are homeowners and businesspeople willing to stand up and fight for their rights, the scourge of eminent domain abuse will be eliminated.

Scott Bullock is an IJ senior attorney.