Eminent domain cannot be employed for a private project under the State Constitution, so the City Council cannot legally take over 260 homes away from their owners to building the hospital, according to one of the principal opponents of the development. 

            The proposed site for new LSU/Veterans Administration medical complex is a 70 acre area bounded by Tulane Avenue, Canal Street, Claiborne Avenue and South Rocheblave, The concept is to build two separate hospital buildings that share laundry and other operational structures, but would both be close enough to the downtown campuses of Tulane and LSU Medical Schools to create the synergy of a downtown medical complex.

            The Veterans Administration has agreed to pay for the operational structures while the state utilizes FEMA dollars and its own resources to fund the construction of an estimated two billion dollar teaching hospital which would replace “Big Charity”.

            In the cost, lay the wrinkle, according to political consultant Johnny Adriani.   Building the hospital would violate the state’s bond/debt cap, at least if it were a public project.   The Jindal Administration has argued, though, that the hospital itself could levy bonds, as a private non-profit entity—a similar arraignment to bonding capability of East and West Jefferson hospitals.  Both were built under the auspices of the parish government of Jefferson , but operate as quasi-independent non-profits today, and can consequently issue their own debt outside of legal restrictions.

            In a conversation with Adriani on the author’s radio program (on WBSL 1190 AM from 3-5 pm weekdays), the writer of this column asked how the city use its eminent domain power to buy out the properties between Tulane and Canal for what the Jindal Administration figures will be a private entity.  Didn’t the voters recently pass a constitutional amendment that bans the use of eminent domain for private purposes—in reaction to the New London , Connecticut case?

This led Adriani to consult his research and reply, “Okay, according to the Louisiana State Constitution ‘...the state or its political subdivisions shall not sell or lease property which has been expropriated and held for not more than thirty years without first offering the property to the original owner...’ (Art I sec 1(H)1).  This is an interesting part of the law. The State cannot expropriate land and then offer it up for sale before granting the expropriated party the right of first refusal.”

“What we have here is the City of New Orleans planning on exercising eminent domain upon property holders which it can do for public use.  The larger question is whether or not the City can exercise that right when it plans to construct a facility and then transfer the ownership of that facility to a private not-for-profit entity.”  

“It is plain to see that the planned course of action that the Department of Health and Hospitals outlined in their ‘Louisiana Health First’ White Pages is to place the ownership of the LSU/VA Academic Medical Complex in private hands. By doing so it appears that the State will be violating the constitutional rights of those property owners from which the property will have been taken.”

The next day, Adriani drafted this letter to the editor of The Louisiana Weekly.  “Protection of personal property rights is fundamental to the very foundation of our Nation.  Such notion weighed upon the Forefathers’ minds with such gravity as to cause them to inscribe upon the United States Constitution, via the Fifth Amendment a prohibition against government taking private property for public use without just compensation.  The Louisiana State Constitution follows suit protecting the rights of Louisianians by delineating that “property shall not be taken or damaged by the state or its political subdivisions: for predominant use by any private person or entity; or for transfer of ownership to any private person or entity,” (La Const. Art. I § 4(B)(1)).”

“As New Orleans embarks upon 2009 an interesting scenario is about to unfold.   The City of New Orleans will attempt to acquire the necessary land required for the footprint of the fabled LSU / Va Academic Medical Center.  The property will be expropriated in accordance with the law, that is under the guise ‘for public use,’ to construct a replacement for Big Charity Hospital .  Yet, curiously, the ultimate plan for medical complex after completion is its transfer of ownership over to a private not-for-profit entity.”

Adriani continues in the letter to outline how the “White Pages” published by the Louisiana Department of Health and Hospital’s plan dubbed “Louisiana Health First” clearly declares the State of Louisiana ’s intention to place the new Academic Medical Complex under the control of a private entity.  Then, he writes, “And, so, with such a declaration having been made by the State of Louisiana the question begs of itself whether or not the City of New Orleans can expropriate land for ‘public use’ when the true intention of the expropriation is to transfer the ownership of individual private property to a private entity while subverting the individual’s right of first refusal?  Such determination will be left to the minds of legal scholars.”

The political consultant concludes, “In the spring of 2008 a Legislative Special Session was held and laws were passed which many heralded as ‘ethics reform.’  Ethics reform is utterly meaningless when government becomes so morally bankrupt as to usurp Constitutional restraint and trample upon the rights of individuals for whom it serves.  The circumvention of private property rights by declaring an expropriation for ‘public use’ with foreknowledge that once the acquisition has been completed there will be an immediate transfer to private use is an atrocity.   It is an attack upon our unalienable rights of ‘Life, Liberty and the Pursuit of Happiness.’  It is an affront to the very foundation of our very existence as a Nation.”

In an interview with Bayoubuzz.com subsequent to his Letter, Adriani was asked, if legally, do enough grounds exist for the courts to consider the Medical complex a private entity?

He replied, “The formation of the entity, as planned, will be legally defined as a private entity.  That makes it non-public.  All the above [the Jindal Administration’s sponsorship of the project via LSU Medical School ] is immaterial.”

“It is rather interesting to note,” Adriani expanded, “that the details of any agreement between LSU and Tulane, who will also be a partner in this venture along with the Veterans Affairs, has yet to be finalized.  So actually the cart is before the horse in regard to the creation of the entity which will actually own the property and the LSU hospital.  I don't think that the Courts matter in the determination of whether or not the entity is a private or public when the formation will be specified in its articles of organization as private.” 

“Wednesday's Baton Rouge Advocate quotes Alan Levine: ‘the private, nonprofit route is 'one of the opportunities for being able to finance it without committing the taxpayers' and overextending state borrowing, Levine said.’ http://www.2theadvocate..com/news/28381949.html?showAll=y&c=y

Given that now that a majority of the Supreme Court members supported the end of eminent domain for private entities (IE supported the Constitutional amendment), this newspaper asked Adriani how might this play if eminent domain is brought under judicial review.

He responded, “In all due respect to the Court, the Justices ought to get their heads in a few history books and review the arguments framed behind the bill of rights and then go and read the Federalist Papers, specifically Federalist 10. There are plenty of other things I could tack on to their reading list but I believe that the point made here is sufficient.”

“Secondly, the personal beliefs of the Justices should not influence their decisions based upon sound legal argument.  Unfortunately, in my opinion, Case Law has become so mired down upon prior cases the true scope of legal intent has become abridged and clouded.  Common sense tells you that what the State plans on doing to private property owners is wrong.  Yet we'll end up haggling this issue with $500/hr attorneys billing countless hours.  For what?  Just to have some overly thought forty page Judicial opinion which ramrods the government's position that property rights are no longer sacred in America ?  Turn to James Madison for a moment in regard to property rights. ‘The protection of these faculties is the first object of government.’" 

“Let's face facts here.  The 70 or so acres is desirable for the simple reason of proximity.  It's right across the Tulane Avenue from the LSU Medical School .  I would be willing to wager that the VA could really care less where the LSU hospital is built as long as they can share services.” 

“Let's also examine the D[owntown] D[evelopment] D[istrict]'s position paper prior to the Storm in regard to Canal Street revitalization.  The DDD's plan called for an establishment of some, albeit ever so small, foothold of Medicine on Canal Street .  It made perfect sense as it brings the medical community to Canal Street and fosters economic growth.  Things changed in August of 2005.  The DDD's plan has floundered around.  What better opportunity to bolster economic development than placing TWO hospitals on property adjacent to Canal Street ?” 

“The ends do not justify the means however.  Who doesn't like the idea of a modern teaching hospital?  Who does not want to see Canal Street blossom?  But remember back to the 1950's and forward with the construction of the interstate system.  Eminent domain seemed like an excellent idea -- look at what it has done to neighborhoods.  As you have so accurately pointed out there is other land around,” specifically the two other proposed sites at the former Lindy Boggs Hospital and it surrounding warehouses and across Tulane Avenue on land already owned by the New Orleans Medical District.   

Adriani went on to speculate that legal challenges could stretch into years, denying LSU Medical School a teaching hospital (and threatening its accreditation) and providing no real source for Veteran or Indigent care in the city. 

“How long could a court challenge of the private/public status take?  Assuming there is such a challenge which I do not believe there will be if the actual designation is private I will leave that answer to the Almighty, as God only knows.  With all of the preliminary motions, memorandum, objections, and intervening parties, at the earliest I would imagine such legal action coming close to a trial would be no less than a year.  The target date for construction commencement is 2012.  Add a year or two in litigation and we're looking at 2015?  Maybe on the tenth anniversary of Katrina we can celebrate the beginning of construction?  LSU will be lucky if they still have a medical college in New Orleans by that date, and if Tulane doesn't move its medical college somewhere else, well, I wouldn't blame them if they did.”

“But we continually underestimate what we are doing to the health care industry with pie-in-the-sky dreams.  We will regret this one day.”

Adriani concluded with the thought that the new VA hospital with partnership with LSU would ultimately include approximately 200 beds, approximately the same available space as currently exists in “Big Charity”.   That facility could be reconstituted according the Foundation for Historical Louisiana at a fourth of the cost of the proposed two billion dollar pricetag for the LSU/VA complex.  

Whether that number is low as legal challenges and the costs of moving 260 households, mostly gabled Victorian homes constructed in the late Nineteenth Century, are factored into the equation remains to be seen.  

Call in your responses to this article live on the radio, WBSL 1190 AM, 3-6 PM, Monday-Friday.  Call toll free, 1-877-622-1190.  The author, Christopher Tidmore hosts Gulf Coast Today, every weekday afternoon.  

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