Live from Music Row Friday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed attorney Braden Boucek with the Southeastern Legal Foundation to the newsmaker line to give details in the Nashville sidewalk war victory.
Leahy: On the newsmaker line, our very good friend, a top attorney with the Southeastern Legal Foundation, Braden Boucek. Good morning, Braden.
Boucek: Good morning to you, and you should add there that I’m an aspiring all-star panelist as well.
Leahy: (Laughs) An aspiring all-star panelist. I think we can help you with that goal, Braden. (Carmichael chuckles) We are delighted to have you on. Hey, look, congratulations on the sidewalk war victory that you helped get started when you were at the Beacon Center. Tell us about that case.
Boucek: Yes. So a lot of Nashvillians are familiar with Nashville’s crazy system of sidewalks because we’ve got these sidewalks that go to nowhere and we’ve got these crooked sidewalks. But even crazier than the sidewalks themselves are why they are that way.
And to come up with a law that insane, it took the Metro City Council to come up with it. What Metro City Council decided a few years ago was that they really wanted sidewalks, but they had no idea how to pay for them.
So what they decided to do instead was just to force the homeowner to pay to build city sidewalks and then give them to the city for free or alternatively, you could just give the city a bunch of money and get out of the condition altogether. And we challenge that when I was at the Beacon Center on behalf of two Nashville homeowners, combined with our friends at Southeastern Legal Foundation, where I currently am.
And just a couple of days ago, the Sixth Circuit Court of Appeals, one court below the United States Supreme Court ruled that what Nashville was doing was unconstitutional and a form of a taking analogous to extortion.
Leahy: So what happens now?
Boucek: That is a great question. We do not know what the city is going to do in response to this. It has taken literally millions of dollars from countless Nashvillians and put it in a fund dedicated to the building of sidewalks.
Every one of those dollars now is suspect as to whether or not it was wrongfully obtained. What the city could do is look for ways to unwind this law and give everybody back the money that they wrongfully took from them. Whether or not the city will adopt that course of action is up in the air.
Leahy: Interesting. Is there a possibility that they might appeal this to the Supreme Court, and if so, would the Supreme Court consider taking it?
Boucek: Yes. I’m not that lucky. I would love it if they took this case to the Supreme Court. We are very confident in our case and the ruling that we got from this panel on the Sixth Circuit is just rock solid.
It’s firmly rooted in the text and tradition of the Constitution, and it’s a vital case in the protection of property rights, which are oftentimes neglected. These are the exact sorts of things that interest the current composition of the Supreme Court. I’m fully confident that the opinion would be upheld, and the effect of it would be it wouldn’t just apply in a Sixth Circuit.
It would apply to every city in America. And they would no longer be able to shake down property owners just to have them pay to address things that cities can’t find the money to do on their own. If they do it, that’s great. We’ll be prepared to fight there. And if they don’t do it, then hopefully we can get about the business of funding sidewalks in a normal and rational fashion.
Carmichael: You said the Sixth Circuit, is that correct?
Boucek: Yes. Correct.
Carmichael: So so does this law, since it was upheld in the Sixth Circuit, does it apply…
Leahy: The law was found unconstitutional in the sixth circuit.
Boucek: I think you mean the ruling.
Carmichael: Yes. The ruling was found unconstitutional. Does that mean that it applies to the entire geography that’s included in the Sixth Circuit only because I’m sure that, I’m sure this strategy has been used in other jurisdictions besides Nashville?
Boucek: That’s correct. It applies throughout the entirety of the Sixth Circuit. So that’s all of Tennessee, all of Kentucky, all of Ohio, and all of Michigan.
Leahy: But not all the country.
Carmichael: But not the entire country.
Boucek: Not all the country. But the logic here extends far beyond just sidewalks. What it really means is that when cities have permitting authority, they cannot attach conditions to it, that you pay for things to address problems that are not of your own making.
And cities do this all the time. They’re always attaching these totally unrelated conditions to you getting a permit basically because it’s an opportunity for them to offload the cost of something onto somebody else.
Carmichael: Can you give a couple of other examples besides the sidewalks, you said they do this all the time and I agree with you, they likely do. I’m sure in your research, you found other examples.
Boucek: Oh, sure. I’ll give you a couple of them. Since we won this case, I had a developer call me to say, the city of Nashville has told me that before I can have a permit to build these homes, they’re going to require me to dig up a water pipe and expand it even though the water pipe was too small at the time that it was installed the first time.
And that’s going to cost me $1000,000 to do that. But I can’t get my permit and the city knows that as long as the value of the permit is worth more than what it is they’re charging me, they’re going to get away with it. And so I gave them $100,000 even though I knew that I was paying for a city problem.
Leahy: That’s a very good example, Braden.
Carmichael: Wow.
Leahy: Let me ask you this. Usually, when we interview you, you’re representing somebody in court and we’re asking you about what that going on with that particular case that you’re involved in. I’m going to ask you now to talk about a couple of cases where I’m involved individually and my company that I’m the CEO of a majority shareholder of Star News Digital Media, Inc.
We are suing and are represented by the Wisconsin Institute of Law and Liberty. In federal court, we’re suing the FBI to get the Covenant Killer Manifesto released and in state court, we’re suing the Metro Nashville government to have the Metro Nashville police department release the Covenant Killer Manifesto. In that case, we’re represented by America First Legal. What’s your reaction as somebody just observing those two cases? Do we have a good case?
Boucek: I think you do have a good case. I’ll be really curious to see what the assertive bases are for opposing these documents. The city is trying to claim some sort of a law enforcement privilege, but that just leaves me fully perplexed. Is there an open investigation that we don’t know about? Are there alternative suspects?
As far as we can tell, the only statement that the Metro police have released has said that they need the manifesto to go off to the FBI for behavioral analysis. But that’s not the sort of thing that would alert suspects. There’s no reason why that can’t be out in the public dialogue.
I’d really like to hear from Metro as to why they think they have an asserted basis to deny this from the public, given Tennessee public records law expresses a clear preference for all documents to be made transparent.
Listen to today’s show highlights, including this interview:
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Tune in weekdays from 5:00 – 8:00 a.m. to The Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Braden Boucek” by Southern Legal Foundation. Background Photo “Tennessee Capitol” by Andre Porter. CC BY-SA 3.0.
