By Scott Tibbs, June 1, 2009
"nor shall any person... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." -- The Fifth Amendment to the U.S. Constitution
Two years ago, the city of Bloomington approached Jeff Sagarin and informed him they were going to be upgrading the footpath that goes through his yard, connecting his street to Greenwood Avenue to the north. The city claimed it had an easement for the footpath, so Sagarin began researching, and made a shocking discovery. The city never had an easement to put a path through Sagarin's yard, and there is no legal documentation that the city has any right to use Sagarin's property for public use. When the city refused to budge, Sagarin filed a lawsuit. The case finally went to court late last month.
The city's excuse for keeping the land that they never had any right to use is that they have obtained a right to use the land through adverse possession. The city claims that since the path has been used by the public for well over thirty years, the use of the path automatically defaults to the city. While adverse possession has a history in common law, it clearly does not apply here. The supreme law of the land in the United States is not common law, but the U.S. Constitution. The Fifth Amendment trumps common law, adverse possession, or whatever other lame excuse the city (or its defenders) wish to use to defend this egregious attack on private property rights.
Indeed, the Indiana Court of Appeals ruled that government cannot claim land by virtue of "adverse possession" in a ruling last August. The court stated in a footnote on the bottom of page 14 that "we would observe that the application of adverse possession seems particularly inappropriate and perhaps inequitable when a governmental entity is involved, especially in light of takings jurisprudence and our system of property rights." (See the PDF here.) A paragraph from the court's ruling is below:
|In its brief, the State notes that in light of the holding in Fraley v. Minger, “it appears that governmental units that are exempt from taxation may never acquire property through adverse possession.” Appellant’s Brief at 14. We agree with the State in its assessment of law with regard to this consequence of the statute. Our Supreme Court made clear in Fraley v. Minger that the adverse possession tax statute may not be totally disregarded. Insofar as the State is exempt from paying property taxes, enforcement of the adverse possession tax statute therefore precludes any governmental unit from acquiring land through adverse possession. There is no exception in the adverse possession tax statute for governmental units that are exempt from paying taxes. If an exception is to be made, it is for our legislature to so provide.|
So why is it permissible under the law for individuals to acquire land through adverse possession, but not government? Of course, the most important reason is that it is against the law. Furthermore, government benefits from a unique position that private citizens do not, and that is the ability to make laws. Pointing to a case where one believes an individual has unjustly claimed the property of a neighbor is not nearly as serious as the government doing the same thing. In the former case, an "injustice" has been done between two people, but in the latter case government has set an incredibly dangerous precedent by tossing aside basic Constitutional rights. It is essential for the preservation of liberty that the government have fewer rights than private citizens, not more.
If the government takes a piece of property from a private landowner, and the landowner protests, requiring that the landowner prove that the land was not taken illegally rather than forcing the government to prove that the land was taken legally opens the door for massive abuses of government power. There is absolutely no evidence that city government took the property legally from the person who owned the land in the early 1970's and the city of Bloomington admits that fact. There is absolutely no evidence that the city has provided "just compensation" as required by the Constitution. Until that evidence appears, the city's confiscation and continued use of Sagarin's property is illegal.
The city and its defenders argue that the path is necessary for the safety of children in the neighborhood. That may be a reasonable argument, but does not and can never be an excuse for ignoring the rule of law and casting aside our Constitutional rights. What if we knew of a plan by Islamic terrorists to bomb an elementary school? Many of the same people defending the city's "right" to Sagarin's property would be taken aback in horror if we suggested that we should torture Islamic terrorists we have in custody to get their plans and prevent the bombing, for the sake of the children.
If we are truly concerned about the welfare of neighborhood children, we should vigorously and aggressively defend the Constitution and the liberties protected by the Bill of Rights. As I said two years ago when this controversy erupted, a government that ignores the rule of law is far more dangerous to our liberty than any Islamic terrorist. The foundation of our system of government is the Constitution, establishing that the nation's highest authority is a system of laws rather than the whim of a legislature or executive. The United States of America is not a nation founded because of a shared heritage or ethnicity; the US is a nation founded to secure the blessings of liberty for her people. One need look no further than the genocide committed by the Soviet Union to see the inherent dangers in elevating the state over individual liberty.
Last Monday was Memorial Day, and there is no more obscene way for Bloomington Mayor Mark Kruzan to disrespect the men who have given their lives to defend liberty around the world than to attack the Constitution the way he has. With this brazen attack on the Fifth Amendment, Kruzan has urinated and defecated all over the Constitution and desecrated the graves of all those who died around the world defending liberty, proclaiming his "right" to do so in the name of "the children" and public safety. Why does Mark Kruzan hate America?
When Osama bin Laden orchestrated the 9/11 terrorist attacks and murdered thousands, he did not take away a single liberty from the American people. If Kruzan's jihad against the Constitution succeeds, he will have done more damage to the Constitution than Osama bin Laden could have ever hoped to do on September 11. It is my firm belief that government officials who knowingly and intentionally violate someone's constitutional rights should face criminal penalties for their crimes against the Constitution. Mark Kruzan should be behind bars, not sitting in the Mayor's Office.
If the city of Bloomington believes it is in the best interest of the public that the "secret sidewalk" remain on Sagarin's property, the answer is simple. The city should exercise eminent domain and purchase the property through the proper legal channels. The city should then publicly apologize not only to Sagarin, but to every citizen of the United States. After all, if the city wins this battle, a legal precedent will be established that greatly weakens the Fifth Amendment. Setting the dangerous precedent that some Constitutional rights can be tossed aside "for the children" weakens all of our Constitutional rights and moves us closer to the very tyranny this nation was founded to escape.
A picture of the "secret sidewalk" is below, for context. Source: Google Maps.