Outrage over eminent domain ruling

Debate over what Supreme Court decision means for property rights
By: Jessica Swesey: Inman News
Thursday was a sad day in court for 15 homeowners residing in New London, Conn., who learned they would be forced to sell their properties to private developers who will knock down the houses and build offices and retail complexes.

In a 5-4 split decision, the Supreme Court ruled that cities could take private homes and hand them over to developers for public use projects in the widely watched eminent domain case, Kelo v. New London.

Susette Kelo, one of the homeowners challenging eminent domain abuse, in a statement released Thursday said, "I was in this battle to save my home and, in the process, protect the rights of working-class homeowners throughout the country. I am very disappointed that the Court sided with powerful government and business interests, but I will continue to fight to save my home and to preserve the Constitution."

At issue in the case was a redevelopment project in the downtown and waterfront areas of the economically distressed Connecticut city. The Supreme Court had to decide whether the property transfer from the private owners over to the developer met the required "public use" element for eminent domain.

Several Inman News readers wrote letters expressing their concern over the broader implications of the ruling:

"This is an outrage," said David G. DeVries. "Private property is a constitutional right." DeVries takes issue with the debate over public use. In the Kelo case, the court ruled that developers were providing the necessary public use to exercise eminent domain.

Another reader, Patricia Ross, said the broad reading of eminent domain rights to seize private property for distribution to other private parties is "a sad outcome."

"The common good identified speculates that a simple redistribution will provide greater value to the tax base than current use…That theory could apply to any residential neighborhood, however, to any island, or to any real estate held for industrial, warehouse, or residential property anywhere since the income attributable to stores and offices is always higher than any other form of property class," she wrote.

But Thursday's Supreme Court decision doesn't mean that every city will decide to take private property from homeowners and transfer it to developers for public use in every situation.

Neil Richards, associate professor of law at Washington University in St. Louis, pointed out that the court spent a lot of time reviewing the proposed development project in New London, and that the decision really means that states have the power to decide for themselves, not necessarily that they will engage in eminent domain activities.

Richards, who teaches constitutional law, privacy law, property and legal history, pointed out an important line in the majority court opinion that says states are free to pass laws saying cities cannot take individuals' private property.

People who are worried about the possible broad implications for property rights resulting from this case should lobby for state laws to prohibit this, Richards suggests.

The question of whether the court's decision undermines individual fifth-amendment property rights is tough to answer and depends on a person's views on where property rights came from, Richards said. "If you believe that property rights are a creation of government, then no," he said, the decision would not undermine those rights. But a person who believes property rights are a natural human right would feel the opposite.

"I found this to be a very difficult case," he said. "On the one hand, property rights are important and entitled to significant protection for good reason. On the other hand, what the city was trying to do here seems like a laudable goal."

It will be interesting to see how the decision plays out in the lower courts, Richards said.

The Institute for Justice, which represented the homeowners in the case against New London, has warned that the Supreme Court's ruling leaves homeowners vulnerable to bureaucrats and developers.

"The court simply got the law wrong today, and our Constitution and country will suffer as a result," Scott Bullock, senior attorney for the Institute for Justice, said in a statement released Thursday. Bullock said the 5-4 split and the nearly equal division among state supreme courts shows how divided the courts really are on the issue. "This will not be the last word," he said.

Bullock turned to Justice Sandra Day O'Connor's dissenting opinion, in which she wrote, "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

Chip Mellor, president of the Institute for Justice, said the action now turns to state supreme courts where the public use battle will be fought under state constitutions. "The Institute for Justice will be there every step of the way with homeowners and small businesses to protect what is rightfully theirs. Today's decision in no way binds those courts," he said in a statement Thursday.