Pen Mightier than the Sword? We’ll See…

by John Sophocleus

As I type this text for LewRockwell.com, I'm also working on another Writ of Certiorari to the Supreme Court of the US [SCotUS]. Given the dearth of coverage this case has received from traditional media (dare I type blackout?) very few know about our argument, which is an antidote to the infamous Kelo decision. If the Supreme Court AGAIN rules correctly (as they did in 2005) it would put us on the path toward significantly curbing eminent domain abuse in our nation.

The Kelo case in New London, Connecticut reaffirmed taking private property (from homeowners) to be given to another private entity – the pharmaceutical giant Pfizer. This is patently unconstitutional to anyone who understands the text and the spirit of the document – specifically our 5^th Amendment civil right clause on takings, which prohibits the government from taking private property for private use. So today, where a decent, socially beneficial neighborhood once stood is now an empty lot, displacing citizens, homes and further destroying the economy (tax base) as is all too often the case with corporate welfare programs. To add insult to injury, Pfizer recently announced it is shutting down to leave New London to cut costs after merging with Wyeth. Perhaps if Pfizer had to bear the true cost of the project from the outset – this whole nightmare episode in command and control government for Suzette Kelo, et al. would have never began.

The question rarely asked in most of these failed forays into corporate welfare: if this was such a great idea, why was force required? If Pfizer valued Mrs. Kelo's property more than she did why didn't they simply buy it from her in a voluntary exchange. So once again, as history would forecast, we have what Mr. Carney described in his November 11^th Washington Examiner column, "a wasteland where a neighborhood once stood, and no jobs or business to show for it. It's another travesty of central planning." Pfizer was given the 24 acres of property, now clearly known to be wrongfully taken from owners, for $10 along with specific (non-uniform) tax breaks. Furthermore, state and local governments assumed the burden of removing contamination for this failed project reportedly to be about $26 million.

How do we now unambiguously know it was wrongfully taken? Today we can see the Kelo result with certainty as a lie when it was promised this would be a research facility which would increase tax collection – the stated public purpose. Unfortunately, one can not prove another is lying under these circumstances until the stated public purpose does NOT happen to reveal the lie. Now we know the absurd stated "public purpose" of raising the tax base did not happen – as if this outcome was really all that hard to forecast. Similar outcomes across the nation would exacerbate the housing bubble and market instability we continue to observe.

Once New London let this proverbial camel's nose under the tent, Pfizer's David Burnett wanted to engage in even more central planning and middle class neighborhood cleansing. Mr. Carney offered these quotes from executive Burnett in 2001 taken from the Hartford Courant, "Pfizer wants a nice place to operate. We don't want to be surrounded by tenements." The old Victorian houses in the Ft Trumbull neighborhood did not match Pfizer's/Burnett's vision – a high-rise hotel or luxury condos would be more to his liking. I'd say a rather demanding corporate welfare recipient – which leads to the bigger problem of once you've let a camel in your tent – all the smelly camel droppings which seem endless… like ripples in a cesspool.

Given Mr. Burnett's private (and expensive) tastes, empowered (and subsidized) with eminent domain by the city government, New London would raze the Ft Trumbull neighborhood, where Kelo, et al. sued to block the condemnation all the way to the SCotUS and lost. It was interesting to see such great outrage about the Kelo decision, given it changed nothing – it simply reaffirmed a century of similar decisions which have aided and abetted eminent domain abuse. In my humble opinion, the only surprise was how close the (5–4) decision was, giving some hope this sort of abuse may one day be attenuated by judges who understand civil rights.

Now back to our Farmville, Alabama case. The first question most ask: Why are we still dealing with this violation over twelve years later after our UNANIMOUS win (8–0, Justice Roberts was not yet seated) in the SCotUS back in 2005? The answer is stalling by extremist judges and government paid attorneys. There have been many outstanding jurists, like Judges Nix and Jacob Walker at the local level, and finally the eight Supreme Court justices who upheld the most heroic Judge, Susan R. Walker's THREE correct summary judgments in federal court in favor of civil rights. Then there are other poor jurists, like Myron Thompson, Judges Anderson, Dubina, Edmondson and Marcus who either do not understand, or have such little regard for civil rights, refuse to do their job to uphold our rights and are quite willing to stall and exacerbate the death and suffering of those victimized by eminent domain abuse.

Those poor jurists in BETWEEN Susan Walker's three sound summary judgments at the lowest federal judiciary and the unanimous SCotUS can make it very difficult, as these poor jurists decided to stall and thumb their noses at the facts, Susan Walker's three correct rulings and SCotUS. Whether a malicious error of commission or error of omission/incompetence by Judges Anderson, Dubina, et al., doesn't really matter – the end result is the same. It seems Judge Thompson learned from waiting out good men like Johnny Reynolds to die; so Mr. Reynolds would never see justice in this world for the vicious civil rights violation he suffered. I know many who truly understand the importance of civil rights in our society, who will do all they can to campaign against extremist judges like these men in hopes the Anderson, Dubina, Thompson et al. types never advance to the Supreme Court. On the other hand, I will do all in my power to tout how blessed our citizens would be to have jurists like Jacob Walker and Susan Walker in our highest courts to protect us from extremists who've proffered such great civil right violations and suffering.

Furthermore, extreme jurists know there's little discipline/consequences for their actions; they receive plenty of taxpayers' resources and can use their slow-lynching legal tactics (much less effort/messy than trees, ropes and chains) in hopes those who stand up for civil rights die before they ever see the light of a courtroom. Poor jurists also understand most in Congress do not know their responsibilities, and if they do, will not take their oath of office seriously enough to impeach extreme judges – Congressman Rogers knows of this case and has been asked to do something, yet he's done nothing. He is simply another extremist politician who sees civil rights as mere "buzz words" to increase the power of our current command and control federal government. In fact these rights were designed to rein in the federal government from actions not authorized nor intended, to limit this sort of abuse which has killed and destroyed so many lives.

Congressman Riley, who was in power when this violation took place told us, "you know the road is coming – get out of the way." Much like Congresspeople of today – why would he let concern about citizens being made homeless and dying get in the way of wealth transfers to bankers, contractors, developers, et al who give so handsomely to campaigns? Not to be bested as the "top dog" extremist in Alabama, Gov. Siegelman, who was in power as we drove by our home we were kicked out of to see OTHERS LIVING in it (yet held legal title to, paying taxes on, etc.) said, "We'd like to give property owners their rights, but it would take too much time." I find it difficult to feel one scintilla of sorrow about individuals in prison like Don Seigleman and former DoT director Jimmy Butts, who so greatly harmed us.

Perhaps one day we'll see the Riley, Rogers and some DoT paid attorney types also behind bars; the Anderson, Dubina, et al. type jurists impeached – but don't hold your breath. In my humble opinion there is much more justice meted out in the next world than this one. My duty, as charged in the Declaration of Independence is to do my part "in the course of human events" of my day, and offer the opportunity for others to "do right" in their positions to stop tyranny. If not by the pen – as Mr. Jefferson tried – then it is our duty to dissolve our bond with tyranny by the sword if necessary. We were blessed to have some outstanding jurists in the mix and a SCotUS which ruled so strongly in our favor last time. We pray the SCotUS will again take notice of this blatant civil rights violation and take it upon THEMSELVES this time to correct what these few extreme jurists have allowed.

What does it mean/signal when a UNANIMOUS Supreme Court sends something back to the lower courts to address? It means there's NO gray area here – Judge Susan Walker's three summary judgments were sound – it is telling the 11th Circuit/East Middle District to FIX IT. Think of a unanimous Supreme Court decision of this sort as the "in your face" instant reply to Umpire Jim Joyce's unambiguously wrong call costing pitcher Armando Galarraga the 21^st perfect game in the record book. The difference is good gentleman judges like Mr. Joyce admit their mistakes and give the nation a wonderful example of how a judge, who's made a poor decision, may make amends. If this is what the Supreme Court was hoping for… well, this is NOT the sort of jurists Messrs. Anderson, Dubina, Thompson, et al are in fact and have shown they have no intention of fixing their past absurd rulings.

Our travail began in Feb. 1998, when bureaucrats came to our home saying our property on US Hwy 280 at the end of College Ave. (AL 147) was worth $59,800. Our reply was simple – find us another 3 bedroom; 2 bath home on an acre or so of land like ours (a mile or so outside the Auburn City limits) with a 30x30 200amp workshop where I could pull engines, frames and paint cars, and we'd move in a.s.a.p. – doesn't matter to us if they pay a $1 for it. Otherwise, it appeared to this young economist it would take about $167,000 to replace/reproduce it for us to remain in the same area. A property directly across from us on US 280 – i.e., on the side not taken from – the year prior sold for about ¼ million dollars, so we were clearly being reasonable. Later, professional appraisers put it at $175,000 so once again my $167,000 seemed on target.

After making us homeless for about seven months, bureaucrats offered $145,000 the day before they'd have to face a jury. They again lied on the date we'd finally be paid, making us homeless for over 11 months. Many said they were disappointed at our not going to court for the remaining $30,000 to get to the $175,000. My defense is simple – that would have just been over money (not our objective) and the ONLY thing [according to 18-1A et seq. of the Alabama code] Judge Jacob Walker's court could decide was just compensation – by law he couldn't have addressed the civil rights violations even if he wanted to. DoT bureaucrats and lawyers made it very clear they wouldn't let the jury hear any civil rights violations and tactics used and if so, they'd carry it on even longer declaring a mistrial. They do not want a jury seeing the vulgar/unlawful tactics they systematically use – most victims settle because the small strip of land taken doesn't include their home so it isn't worth the effort to stand against the fraud.

In my opinion, it would be more important to later show in the civil rights case, under their own accord, bureaucrats said our home was worth $59,800 when making us homeless, yet $145,000 the day before they'd face a jury. Now they CAN'T say it was a jury which "went wild" feeling sorry for us – the DoT bureaucrats/lawyers did this on their own. It's a compelling question: When were they lying? At $59,800 or $145,000? I think the arithmetic under the circumstances speaks for itself.

This gets to the heart of understanding the tactics used by lawless attorneys, bureaucrats, and the jurists who aid and abet them. I want to again stress we've also had attorneys, bureaucrats and judges of great integrity and character – without them, it would not have been possible to gain our last unanimous SCotUS victory in 2005. The lawless agencies and their bureaucrats usually get away with policies of systematically violating citizens' civil rights because most victims can not endure being made homeless, having to continue to pay their mortgage, pay attorneys, find some other place to stay, etc… We were blessed with having our home paid off since 1995, an above average ability to defend ourselves, support of church, family and friends. These are the sort of people who refuse to idly sit on the sidelines and watch victims like me and my wife suffer, because they understand it is the path to Auschwitz.

To once again recount the specifics of how we were harassed and humiliated, which include burning fires over us, peeping into windows at all hours, crushing our sewer line and coming at our home with huge earthmoving equipment would take too much text and are still painful. The most horrific events include coming at our home with a huge backhoe where I felt compelled to bear arms. Obviously something a lowly teacher wanting to live in peace, and mind their own business should never had to endure. Those who'd like to know more may want to go to:

Basically, our case is a wrongful taking because our government (mostly Federal and a little State money for US Hwy 280) did NOT do what their representatives stated in Lee County District Court – i.e., did NOT raze our home IMMEDIATELY. Instead other individuals LIVED in it. It is important to note, this was the timetable stated by government bureaucrats in open court – claiming we were holding up the highway… yet they reported to the local newspaper they were ahead of schedule if you're keeping tally on all the lies. In other words, according to well-established law, when it was NOT razed immediately as stated in open court, possession returned to us until the stated public purpose began. Of course, you can't prove someone is lying under these circumstances until they do NOT raze it immediately… clearly they were hot to kick us out on the street when they threatened us with a $10,000/day fine, something else the lawless attorneys and bureaucrats were not empowered to do under the eminent domain code.

What makes our argument different and compelling is we'll concede to the stated "public purpose" (however absurd) given past poor decisions by many jurists these past 100+ years, but the government must then actually DO what is stated or there is well-established case law which asserts possession reverts to the original property holder. On this we REFUSE to concede and if we do, we are saying OK to fraud and lying. The punch line is: Name one developer of sound mind who would take property under the stated "public purpose" of increasing the tax base; then "improve it," only to later be compelled to return it to those they've wrongfully taken it from. In many cases it would be easy to find expert economists who can show the tax base didn't increase as promised. This is very easy to affirm today in the Kelo case since the public purpose has NOT been met and clearly LOWERED the New London tax base. That's why recipients of this sort of corporate welfare do not want this case to ever see the light of a courtroom

Judge Thompson and the 11^th Circuit have now twice argued we should have brought these claims in the Lee County Circuit Court (where we were Defendants) but 18-1A-et seq. makes it clear no other claims/issues may be addressed – i.e., ONLY just compensation. Remember, the government doesn't want juries to see policies and tactics used by state bureaucrats and their appraisers, commissioners, contractors, right of way engineers, relocation officers, et al when determining compensation. Most importantly, and it seems the SCotUS understands, the litigants ARE not, nor COULD have been a part of the compensation case in Lee County Circuit Court. Furthermore, it is the plaintiff's right to decide where they wish to bring their claim. Still Anderson, Dubina et al rehashed their same flawed text AGAIN after the SCotUS unanimously said NO. So, how can one prove a bureaucrat is not going to do what they say in court until it DOESN'T happen? How do these extreme jurists expect one to address these civil rights violations where prohibited …against litigants who have NOT been party to any previous claim? If you hold your civil rights dear, pray the SCotUS will "do right" again, and take it upon themselves to address this injustice denied for almost 13 years, mostly by the jurists who have shown such disregard for our civil rights and have clearly refused to repair their mistakes.

I know there are many who want to do something about this. Please do… write letters, tell your friends, ask your favorite Radio/TV talk show to devote a program to this sort of abuse, contact 60 Minutes, 20/20, etc… I'll continue to do all I can. One thing I will not do is accept the "hero" moniker. I'm NOT the hero, I'm one of the victims. Unlike BP CEO Tony Hayward who WILL get his easy/unscathed life back – nothing can give us back the last 13 years of our lives. We have more time, money and effort in this fight than most have in their homes – obviously I'd rather have devoted it to a youngin of my own instead of fighting for the future of all our youngins. Could it be worse? – no doubt, but thankfully there've been so many others who do not want to let it continue toward the usual outcome as in Germany. I remember reading as a youngster of the courageous Warsaw ghetto Jews finally fighting back and killing Nazis. I could never shake the fact that they were victims – forced into a position which never should have been put upon them. The heroes of our case are the ones who've come to our rescue, Judges Nix, Jacob Walker and Susan Walker, the eight Supreme Court Justices in 2005, my attorneys not letting this drop all these years, those who have suffered and been threatened for writing letters about this and esp. a score of witness like Professors Anderson, Beil, Blackstock, Laband, Stenriech, Tittle, et al. who are still living and Professors Byrd and Kaserman who've died over these past many years of delaying/denying justice.

I suspect some of the poor jurists listed above wish even more would've died during this long legal lynching we've endured. I was the same age as Johnny Reynolds when he brought his civil rights violations before Judge Thompson – he died at 47. I recently made it to 48 – so it seems I may make the distance. Again, it's unlikely these extreme jurists will ever face a "Judgment at Nuremburg" equivalent; justice of this sort rarely occurs in this world. For those of you who can't understand why so many good people would do this for us – reread your Declaration of Independence this Fourth of July – it is a powerful document. I do not want to meet Adams, Franklin, Jefferson, Paine, Washington et al in the next world and have to answer why I didn't fight for what they fought so well to give us. We simply refuse to be "fatigued into submission."

In closing, my parents taught me the pen is mightier than the sword, but told me it was important to be able to use both well. I surrendered the option in November 1998 to use the sword (my M-14 rifle) when justified, to give the pen a chance – it remains unclear if this was a wise decision… we'll see. One of JFK's more famous enduring quotes is, "Those who make peaceful revolution impossible, make violent revolution inevitable." Pray the US Supreme Court doesn't let this case slip through the cracks and again rules in favor of the pen to avoid putting us on course for another Auschwitz.

Portions of this text originally appeared (or is forthcoming) in the Alabama Gazette.

June 23, 2010

John Sophocleus [send him mail], a former Ford Motor Company Warranty & Policy Administrator, took his vow of poverty to teach Economics. He is also an admirer of von Mises, who courageously spoke out against the National Socialists of his day.

Copyright © 2010 John Sophocleus