By James McNair
The Cincinnati Enquirer

As landowners battle condemnations just a few miles apart, the law firm involved in both cases is showing it can support eminent domain seizures - and oppose them, too.

Both condemnation cases involve high-profile proposals to bulldoze older neighborhoods tagged as blighted and then condemned in the name of progress.

Resistance in both cases has shriveled to a handful of property owners.

And in both cases, Manley Burke - a downtown firm with 14 lawyers and a flair for eminent domain law - is vigorously arguing the finer points of condemnation on behalf of its clients.

But in one case, the firm stands against property owners. In the other, it stands with them.

In Norwood, where the city is trying to seize five properties for the Rookwood expansion, the firm proclaimed in a court filing: "While it is regrettable that defendants must be required to sell their property, it is for the public good and welfare."

And in Clifton Heights, where the City of Cincinnati is staking claim to a two-block, 31-lot swath on the southern perimeter of the University of Cincinnati, the firm asserted that a business owner fighting the condemnation "has a civil right to own and use its property and to operate its business without unreasonable and arbitrary interference by government."

No one is crying foul over the situation. Manley Burke's representation of clients with contrary interests in the two eminent domain cases constitutes no ethical conflict on its face, much less a violation of bar rules.

"I just don't see any conflict," said Christo Lassiter, a law professor at UC. "Obviously both parties independently sought out the best lawyers practicing in eminent domain, and Manley Burke is known for that."

"I think it's very ironic that two attorneys who are partners in the same law firm can in good conscience defend both sides of the issue," said Dan Deering, director of the Clifton Heights Community Urban Redevelopment Corp., a non-profit group spearheading the facelift of the business district. "It looks suspect from a distance."

In Norwood, a Washington-based libertarian public policy law firm called The Institute for Justice represents holdout property owners in their fight against a blight designation and a condemnation lawsuit. All but five of 71 owners have agreed to sell their properties. They argue that the blight designation is a flimsy pretext for a city-backed takeover of private property for a developer.

Bert Gall, a lawyer for the Institute for Justice, has read all of Norwood's arguments - filed by Tim Burke - in support of expropriating the neighborhood. But when he was informed of Robert Manley's arguments against eminent domain seizures across town in Clifton Heights, he did a double-take.

The city of Cincinnati, Manley wrote last August, "has violated the civil rights of the (property owners) by fraudulently attempting to use a deceptive and misleading blight study that misrepresents the true condition of the neighborhood. ... This attempted appropriation is illegal, fraudulent and enacted in bad faith."

Said Gall: "You could take those sentences right there and apply them to our case."

They see both sides

In separate interviews, Manley and Burke said they have represented clients on both sides of the eminent domain issue for years. As far as their involvements in Norwood and Clifton Heights go, they said they do not work on each other's cases.

"We've got two different groups of lawyers here working on two different cases," Burke said. "The issues in the two cases are very different, and different approaches are being taken in both cases."

Manley, who represents the owners of the Acropolis, In the Woods, Arby's and Hardee's properties on Calhoun Street, said he doesn't know that much about the circumstances in Norwood.

"I have kept myself uninformed about the Norwood case," he said. "What I know about the Norwood case largely comes from the public prints."

Burke said he has represented the city of Norwood for close to 20 years and has represented UC, the Cincinnati Board of Education and the City of Fairfield in eminent domain cases. Manley said he represented numerous property owners facing losses to eminent domain, including about 250 who were uprooted by the construction of Paul Brown Stadium downtown.

"We've been on both sides of the public law question since the beginning of time," Manley said. Being in a law firm that helps clients on both sides, he said, keeps them from being "locked into" one doctrine.

"That's the only way to keep your balance," he said. "I know lawyers who only represent condemning agencies or, in zoning, developers, but never property owners or neighbors. By bringing that balance, I'm able to do a better job for my clients."

An inside 'ethical wall'

While Burke argued that the condemnation opponents in Norwood had only one basis in case law for filing a separate lawsuit challenging an eminent domain proceeding - when property is being taken for roadways - that didn't stop Manley from doing so in Clifton Heights. He filed a federal lawsuit, claiming property owners' civil rights had been violated. Manley said that case has been stayed, pending the outcome of the condemnation case.

Lassiter, the UC professor, said that in many areas of law, firms specialize in representing one side or the other, with little crossover. If there is, he said he would expect the firm to fully disclose its dual interests to its clients, while building an ethical wall within the firm.

"I think what's going on here is that eminent domain cases, unlike automobile or bankruptcy cases, are relatively few and far between," Lassiter said.

"Therefore the expertise one develops in eminent domain certainly can lend itself to either side of the argument."

And, as Norwood landowner Nick Motz said, it can lend itself to making more money.

"Sounds like a good business plan to me," Motz said.

E-mail jmcnair@enquirer.com