The series of articles in the Day from June 21-23 by Ann Baldelli and Colin Young concerning the 10th anniversry of the Supreme Court decision in Kelo v. New London — as well as the multitudes of opinions from legal scholars and commentators — have all ignored the underlying fundamental reason that the City of New London prevailed in the decision.

The plaintiffs’ lead attorney, The Institute for Justice (IJ), acting in cooperation with a local attorney, litigated the wrong issue. Their case should have focused on City Charter language that pre-empts the eminent domain provisions of state statutes concerning economic development. Instead, IJ argued against the constitutionality of using the power of eminent domain to hand private homes or businesses to developers under the guise of stimulating economic improvement.

Living in New London at the time and having carefully researched the issues, I was knowledgeable of the legal strategies and proceedings. I twice met with IJ attorneys Scott Bullock and Dana Berliner in the local attorney’s office to present a list of procedural infirmities and to advise them that the Charter pre-empts the statutes in the absence of exceptions, a precedent supported by two state Supreme Court decisions. They listened and stated that IJ’s commitment was limited to the Fifth Amendment eminent-domain challenge.

IJ lost the case because of its repeated and stubborn refusal to raise procedural irregularity challenges to the validity of the takings. Any wise attorney knows to first address the defects in the administrative processes before prosecuting constitutional issues. Courts have traditionally avoided tackling constitutional issues, if possible.

The city has a charter created as a special act of the 1921 General Assembly containing procedures for the taking of property by eminent domain. Similarly, the General Statutes, Title 48 contains provisions for eminent domain, which was adopted in 1949 for towns without charters or eminent domain provisions. The applicable statutes do not provide for overriding town charters, in that they do not include the key statutory words “notwithstanding any provisions of any special act or charter.” Yet, the NLDC ignored the charter and took property by eminent domain under Title 48; a clear breach of the Connecticut Constitution’s home-rule provisions.

Article 1, Section 3 of the New London Charter provides that the City: “(s)hall have (the) power to take by eminent domain any lands, rights, easements, privileges, franchises or construction . . . for the purpose of establishing, constructing or maintaining a system or systems of water supply; a system or systems of sewerage and drainage; schools and school purposes; wharves, highways, public places and grounds, parks and all things in the nature of public works and improvements.”

There is no provision to take property for economic development.

Al though the complaint filed with the court cited the charter, IJ never briefed nor argued the matter. As a result, court procedures required the issue abandoned for appeal.

Had the plaintiff’s attorneys focused on the eminent-domain restrictions contained in the New London charter, those homes could have been saved.

Robert Fromer is a former New London resident and an environmental and social activist. He now lives in Windsor.