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distressed area

Lost Liberty Hotel

The Lost Liberty Hotel or Lost Liberty Inn was a proposed hotel to be built on the site of United States Supreme Court Associate Justice David Souter's properties in Weare, New Hampshire. The proposal was a reaction to the Supreme Court's Kelo v. New London (2005) decision in which Souter joined the majority ruling that the U.S. Constitution allows the use of eminent domain to condemn privately owned real property for use in private economic development projects.

On March 14, 2006, a ballot initiative favoring this project was defeated by almost a three to one margin. Two candidates who had supported the initiative were not elected to the town's Board of Selectmen.

History

Souter voted with the five-Justice majority in Kelo v. New London, a 2005 decision in which the Court held that the Constitution does not prohibit a local government from condemning private property in order to transfer the land to a commercial developer that promises to bring in more tax revenue than the original owner, so long as such use serves a subjectively-defined "public purpose," such as economic development of a "distressed" area.

Justice John Paul Stevens wrote the majority opinion, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Justice Sandra Day O'Connor wrote the principal dissent, joined by Chief Justice William Rehnquist, and Justices Antonin Scalia and Clarence Thomas. Justice Thomas also wrote a separate dissent.

On Monday, June 27, 2005, Logan Clements announced his proposal for the hotel and made initial contact via fax to Chip Meany, the Code Enforcement Officer for the City of Weare - stating his intent and requesting basic procedural information to set the property transfer in motion using the legal process of Weare's local government in conjunction with the new eminent domain criteria under the Kelo ruling Souter helped vote into law.

Clements, CEO of Freestar Media, LLC, argues that the City of Weare would gain greater tax revenue and economic benefits from a hotel (plus accompanying cafe) on the site than it would from a private residence. Part of the process of building the hotel would be the seizure of that property under the eminent domain powers that the Supreme Court declared permissible under the Kelo decision. Clements said that he plans to partially fund the hotel using investment capital from objectivists, libertarians and other investors and hopes that members of prominent objectivist and libertarian groups will be regular customers.

As part of an effort to establish a quantifiable public benefit of the proposed hotel, on June 29, 2005, Travis J. I. Corcoran created an online pledge where potential hotel visitors can affirm they would stay there for at least one week. By 20:26 GMT on July 1, 2005 - eight days later - over 1,000 registered users had signed the list. By the pledge deadline of August 29, 2005 a total of 1,418 signatories had registered.

Clements and his staff maintain they are serious about building the hotel and insist they will build it given enough public interest and financial support. They cite a recent ballot initiative created by the citizens of Weare that would essentially overrule the Weare Board of Selectmen and clear many of the legal hurdles to the hotel project by a direct vote of the people; Clements' continued efforts at financing the project through donations; and public relations efforts such as suggestions through their website for menu items at the hotel's restaurant, and a contest among talk show hosts to name the honeymoon suite after whichever can get their listeners to raise the most money toward the hotel's construction. Further efforts include a rally in Weare on the weekend of January 21-22, 2006 and support of Weare resident and Lost Liberty Hotel backer Joshua Solomon for one of two seats on the Weare Board of Selectmen which will be open for election in March 2006. Some who doubt Clements' motives point to his decision not to establish a discrete entity to hold funds raised for the project, his call on supporters to make unrestricted donations to his LLC rather than contributions targeted to the hotel project, and his request for donations of items such as legal services, transportation, PR support and call center support. However, in eminent domain cases such as the Lost Liberty Hotel, building contractors are legally prohibited from accepting donations for construction until the land acquisition process has been formally completed. Clements maintains that donations and in-kind barter are common, legal and ethically valid methods of venture funding, and that only after legal acquisition of the property is completed can funds be legally handed over to the builder for commencement of construction. Clements has said "The justification for the donations going to my company is simple: If you like this kind of activism for liberty and want to see more of it, donate," and regards the criticism of general fund donations as a demonstrably unfounded species of ad hominem attack by ideological detractors who are evading the legal restraints involved in building projects.

In sum, Clements's own published statements on the project indicate that while one purpose of the proposal is as punitive retaliation for Souter's part in the Kelo decision, the greater overarching intention is to mount a defense of essential liberties undermined by government edicts such as the Kelo ruling. Local officials had previously reported that, as of July 16, 2005, the proposal's sponsor, Logan Clements, "hasn’t done anything" to advance the hotel plan with the town of Weare, and "still hasn’t asked us for the correct paperwork."

In late July, Clements announced an effort to add his proposal to the agenda of the Weare town meeting, and in late August, NPR and ABC reported he had managed to gain the 25 signatures required to place it on the ballot.

Another relevant factor making the project even more unlikely is the Supreme Court's Kelo decision itself, which stated, "Though the city could not take petitioners land simply to confer a private benefit on a particular private party, see, e.g., Midkiff, 467 U. S., at 245, the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted to benefit a particular class of identifiable individuals." In other words, the fact that Clements' attempt to use eminent domain against Souter is not part of a larger redevelopment effort dooms his attempt to failure. The majority in the Kelo decision quite explicitly stated that the redevelopment aspect of Kelo was critical in their decision.

A local group, the Committee for the Protection of Natural Rights, wrote a ballot measure known as a "warrant article" that asks that Justice David Souter's house and land be taken for the construction of an Inn, and for the creation of two trusts, one to hold funds for any legal needs and another to hold donations for the "just compensation" of Souter's property, causing no burden to the Weare, New Hampshire, taxpayer.

On January 22 and 23 2006 a rally was held in Weare. The rally included supporters from as far as the states of Washington and Texas. Speakers included individuals from New London, Connecticut, Clements, as well as the hosts, who were members of the Committee for the Protection of Natural Rights. The supporters went door to door in the town of Weare and got the word out about the ballot initiative. The effort received local, state, and national media attention.

On February 4, 2006, voters who gathered for the meeting portion of the town's annual election process voted to change the article's wording. The new text simply called upon the state legislature to oppose the taking of private property for use by private development, as some argue the Kelo decision may now allow. The voice vote was unanimous, although some supporters of the hotel concept later said they were upset by the vote. Under New Hampshire's town election system, any town resident who attends this annual meeting may amend warrant articles, including ones submitted by petition. Clements later condemned this procedure as undemocratic.

Weare voters passed this newly worded article as it appeared on the town ballot when they went to the polls on March 14, 2006. Two candidates for selectman who supported the hotel and were seeking seats on the five-member board were also defeated. Both were founding members of the Committee for the Protection of Natural Rights.

The farmhouse

Clements's press release said that the Lost Liberty Hotel would replace the farmhouse where Souter spent most of his youth. Souter moved there when he was 11 years old along with his family after his grandparents had died. Souter's father was a banker with the New Hampshire Savings Bank in Concord. He died in 1976, but Souter's mother still lives in a Weare retirement home.

Notable commentary

Professor Randy E. Barnett, a lawyer and senior fellow at the Cato Institute who opposed Kelo, found the proposal amusing at first, facetiously calling the hotel an "excellent public purpose", but rejected the idea when he found out people were taking it seriously, stating: "Retaliating against a judge ... violates the holding of Kelo itself, for the intent would be to take from A to give to B, in this case to punish A." David Hoffman, a law professor, believes that the proposal violates Kelo, and considers the case frivolous.

Professor Eugene Volokh responded to Hoffman on his own blog, categorizing Clements' actions as political speech protected by the First Amendment to the United States Constitution. However, he criticized the hotel proposal itself, on the grounds that "we shouldn't seriously want government agencies to retaliate against government officials by seizing their property."

New Hampshire's Republican state representative from Weare, Neal Kurk, sees the hotel plans as "poetic justice", as he opposed Kelo, but he hopes that "Justice Souter's property will be protected by the good sense of New Hampshire townspeople." Sterling Burnett, senior fellow at the National Center for Policy Analysis, stated that he thought approval of the proposal would be "sweet justice", saying: "It shows how the sanctity of peoples' homes now exists solely at the whim of local politicians." Editors of the Missoulian said they "like[d]" the proposal and that it would "be amusing to turn the tables on those who undermine the rights of citizens", but point out: "Based on our reading of the Supreme Court's majority opinion in the property-rights case, it takes more than a simple good idea to take someone's home away."

Air America Radio commentator Rachel Maddow, appearing on Tucker Carlson's MSNBC "Situation" program, dismissed the proposal as a "creepy" publicity stunt. One Weare area newspaper praised the Board of Selectmen for its handling of the Clements proposal, noting that it was "impossible for them to act on it because it had not gone through proper channels."

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