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The Constitution is at stake in the "secret sidewalk" case

By Scott Tibbs, June 09, 2009

Four years ago, the Supreme Court ruled that government may take private property for use by private developers, a case that shook the very foundations of private property rights and the Fifth Amendment. Now, in the city of Bloomington, another property rights case is being decided that could define how government relates to its citizens. Over 30 years ago, the city of Bloomington built a footpath between the homes of two property owners. One of the original property owners, Shirley Jablonski, says that city officials told her "the city had an easement and could take the land" according to the Herald-Times.

But the city of Bloomington never had an easement to build a footpath on private property. Now, the city claims that it has acquired the use of the land through "adverse possession." However, the Indiana Court of Appeals ruled last year that government may not use adverse possession to gain control of private property, making the city's legal "argument" even weaker. Even if that maneuver were permissible under Indiana law, it is trumped by the Fifth Amendment to the Constitution, which clearly prohibits these kinds of takings. For more, see my earlier post and my column from two years ago.

It is critical that Jablonski and Jeff Sagarin win this case, for two reasons, First and most importantly is that if the city of Bloomington wins, the Fifth Amendment will be severely weakened. If the city of Bloomington is allowed to keep this property that they never had a legal right to use, a dangerous precedent will be established putting the private property rights of every single citizen of the United States in danger. Sagarin and Jablonski should not be forced to tolerate trespassers on their land on a path that is shockingly close to Jablonski's windows.

Second, the city of Bloomington obtained the land for this path by fraud. As I noted in the first paragraph, the city lied to Jablonski when they told her they had a right to the path. The city managed to cover up the fraudulent acquisition of land for over thirty years, until a search of records found that the city never had an easement to build the path. It would be an abomination to the rule of law if the city of Bloomington is allowed to keep the path after obtaining it through fraudulent means. Bloomington mayor Mark Kruzan is a thief, pure and simple, and should be behind bars.

The United States of America is not a nation founded because of a shared ethnicity or heritage. The United States of America was founded to secure liberty for her people and the generations that followed. The founding document of the United States is beautiful because it defines and places strict limits on the power of government. Many of the rights protected by the Constitution are "negative" rights, meaning that the Founders assumed all men are created equal and have those rights at birth. Therefore, the Constitution does not grant rights we already have. Instead, it forbids government from infringing on those rights.

Bloomington Mayor Mark Kruzan is defending the city's so-called "right" to keep the property of an 81 year old woman despite the fact that the city obtained that property by fraudulent means. It is the implications of this case that should frighten every American, because it is an attack on all of our private property rights. Kruzan's actions are not only against Jablonski and Sagarin, but against the Constitution itself. His illegal, anti-American behavior should be firmly rejected by the courts. It is unfortunate he will not face criminal penalties for his actions.