December 11, 2017

How the Government is stealing the property of 23 Michigan landowners

The State can TAKE your land, REFUSE to pay, then BLOCK access to Courts. Retweet

Should the government be protected from liability when it causes real injuries to you or your neighbors? Before you answer…

Pretend that, many years ago, my Big Bad Uncle’s business was taking, just grabbing property from people like your father. He took your family’s land so he could use it for a specific time and purpose. Your parents didn’t get much choice.

  • Big Bad Uncle called his taking a “lease”
  • He alone selected a price he deemed “fair”

No one did anything to stop my Big Bad Uncle because he was too powerful to fight. His company controlled everything, and he had mafioso tendencies. Your family accepted the payments and awaited the end of the “lease.”

Time passed. Generations changed. You awaited the promised return of your property. Hold on! Now the managers of my Big Bad Uncle’s company tell YOU they’ve decided to keep it. And, they’re not going to pay for additional “lease” time unless you hire lawyers to sue them. Moreover… 

Your lawyers have to go to Big Bad Uncle’s company headquarters and file your claim in the legal affairs department. There, you’ll find a Claims Referee. She will rule on whether or not you get your property back or what you will be paid, if anything. Yes, she’s on the payroll of Big Bad Uncle, Inc.

You object that this is not a neutral, fair “court.” Then, as if things cannot get any more absurd, I show up on the scene, as the inheritor of Big Bad Uncle’s company. I declare that God has given me a “Divine Right” to set the rules. In other words, I’m “sovereign.”

On the basis of my sovereignty, I invoke a magical principle to justify my ruling. It’s called “Sovereign Immunity.” You don’t actually have a right to sue our company, so the only reason I’m even giving you a “hearing process” is to be a nice guy.

Well, as they say at the movies, that scenario was based on a true story. I do have an Uncle; his name is Sam. His company isn’t called Big Bad Uncle, it’s called U.S. Government (USG). The part where I invoked the principle of Divine Right was the only part that was “make believe.” Unfortunately, I don’t get to be king.

USG has a program called “takings,” which they use to acquire temporary easements and then “leases” them to railroads. [Easement is more accurate than lease, so we’ll use that term going forward.] But the landowners don’t have a choice. When the railroad stops using the easement, the property is supposed to go back to the owner.

We’re about to tell you about a real group that did NOT get their land back. The next generation of managers was the Congress. They wanted to keep the land and turn it into hiking trails. They even gave the program a cute name — “Rails-to-Trails.”

Since the U.S. Government was running large deficits, they decided the least expensive scheme was to simply continue their taking. You might call it stealing, but they passed a “law,” so its “legal.” It’s good to be the king!

Congress granted their Executive Branch the power to keep those lands without making any additional payment to the owners.

Stealing is a fiscally efficient method, but the entire USG hasn’t played along. The Supreme Court ruled that this post-railroad use was a new, separate “taking” and that landowners could seek compensation.

Congress still didn’t want to pay. So, for those who wanted to receive additional compensation for the second taking, they made some rules. The landowners couldn’t sue the USG in a real Court. They couldn’t bring their case to a jury of their peers, per the Seventh Amendment. Instead, they had to…

  • Go to the same department that took the land — into their Executive Branch “court.”
  • Hire a lawyer and jump through that agency’s expensive and time-consuming hoops.
  • Settle for whatever the department’s “judge on the payroll” told them was “fair.”

23 Michigan landowners joined together to sue. They want access to real courts with juries, not merely employees of the agency that must pay for the new easements.

We want to file an amicus brief asking the Supreme Court to hear their case, Brott v. United States. At stake are the following questions…

  • Can the Executive Branch take land from citizens without compensation, even if they pretend the taking is only temporary?
  • Can the Executive Branch compel owners who are seeking compensation for confiscated land to use courts run by the Executive Branch itself?
  • Is The State immune from prosecution for any crime it commits against citizens?

Our proposed legal brief will make the following arguments…

  • By giving “Rails-to-Trails” cases to Executive Branch courts, Congress has created both a conflict-of-interest and a violation of the Constitution’s separation of powers — the Executive Branch cannot be permitted to be the only judge of its own actions.
  • You’re right to a jury trial, under the Seventh Amendment, is not subject to an act of Congress. Juries should make the final determination about compensation in 5th Amendment takings cases.
  • Finally, our attorneys also want to use this case to attack the Doctrine of Sovereign Immunity. And it’s this last point which attracts us to this case, most of all…

Sovereign Immunity is the principle that rulers can decide both if and how they can be sued. It should be a dead article. It was derived from the Divine Right of Kings era. And our attorneys tell us this is the best case they’ve seen to attack this notion in 40 years!

That’s because the Supreme Court, with a balance of conservative jurists, has taken a deeper interest in property rights and the abuse of the “takings” power. This means there’s a real chance they’ll want to take this case — and our petition can succeed. But we see something more…

Sovereign Immunity has spawned “qualified immunity” for government agents. Police departments have frequently been able to shield the actions of employees in tribunals conducted behind a “thin blue line.”

We want our brief to be a wedge in the doctrine of Sovereign Immunity. If we can pry an opening, later we and others in the field of criminal law, might be able to blast the door completely open — ending this ancient, magical doctrine.

Can you help us execute this brief?

This won’t be easy. We’ve always done these briefs with partners. One of our donors frequently put up the leadership-level funding [about $5-$6,000]. But they had to pull out of our ongoing amicus briefs project. In the Brott case, we’re taking the lead role in the production of this amicus brief. In other words, it wouldn’t happen without Downsize DC.org and the Downsize DC Foundation. We’ll likely need…

  • At least one patron who gives $2,000 or even $1,000, OR
  • One to three donors who contribute at least $500, OR
  • 50 or so contributions of varying size — every bit counts!

Please, help us make this brief possible.Thanks to our partner, the Downsize DC Foundation, your contribution can be…

  • Tax-deductible.
  • Corporate or personal contributions.
  • Appreciated securities (contact us by Replying to this email).

Note: We use the secure, online form of the Zero Aggression Project so contributions can be tax-deductible for those who itemize

As you’ll see on the ZAP contribution form, the Foundation takes Visa, Mastercard, Discover, American Express, Bitcoin, PayPal, checks, and appreciated securities.

Thank you for being a SUPPORTIVE DC Downsizer,

Jim Babka
DownsizeDC.org, Inc.
& Downsize DC Foundation (home of the Zero Aggression Project)

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