Kelo v New London

The first fragment of text that made it past my retina to my brain was

bq. CT can seize homeowners’ property

Yeah I was a bit taken back by that phrase, having assumed that protection of private property was high up there on the list in the US. I assume this is with compensation?

Dave M. — the Court has long asserted authority to interpret the “public use” provision. It’s just been very deferential in doing so.

See, e.g., City of Cincinnati v. Vester, 281 U.S. 439, 446 (1930): “It is well established that, in considering the application of the Fourteenth Amendment to cases of expropriation of private property, the question what is a public use is a judicial one. In deciding such a question, the Court has appropriate regard to the diversity of local conditions and considers with great respect legislative declarations and in particular the judgments of state courts as to the uses considered to be public in the light of local exigencies. But the question remains a judicial one which this Court must decide in performing its duty of enforcing the provisions of the Federal Constitution.”

The Fifth amendment says, in relevant part,

“nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

It’s clear from this language that taking private property for anything BUT a “public” use wasn’t even contemplated. That public use literally meant that the government itself would be using the property, not just handing it off to somebody favored… Exactly what was meant to be prohibited.

Of course, that was a time when interstate commerce had to be commerce, which actually was interstate… I’d make no bets on whether the Supreme court would actually uphold the Fifth amendment’s intent.

I’m stunned that this is being treated as a constitutional, rather than a political question. Nevertheless must recognise that The World Is A Very Big Place and that the USA is a distant country about which we know little.

If the New London council is being unreasonable there should be big protest rallies to put the councillors on notice that if they persist they’ll be tossed out on their ears at the next election. And if there isn’t a majority of townsfolk to stop the ee-vul councillors, why enrich lawyers by fighting a court case?

Or am I being hopelessly unAmerican?

But how would team owners get their cronies in the government to seize land and give it to them to build stadiums? Surely it would spell the end of professional sports!

You don’t have to wait for Eugene Volokh, there is a perfectly good Forecast Engine right here:

the Supreme Court would have to, for the first time ever, rule that “public use” was something the Court had the authority to define.

Nope. It’s always said so. Since 1954 there’s been a ‘blight’ exception to the general traditional rule against taking for transfer to another private actor. And, yes, there was also a traditional right-of-way/ utility business exception for transfer to railroads etc. But the court never disclaimed the authority to judge whether something fell into those exceptions. It never held the words ‘public use’ to be legally meaningless, and always said that purely private uses were excluded. The story of the last fifty years is the story of the blight exception swallowing the rule and turning into an all-purpose economic improvement standard (culminating in Poletown); that’s what Kelo should stop.

Swiped from the Institute for Justice’s brief:

See, e.g., Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 245
(1984) (“[a] purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void); Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 80 (1937) (“one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid”); Missouri Pacific Railway Co. v. Nebraska, 164 U.S. 403, 417 (1896) (“[t]he taking by a State of the private property of one person or corporation, without the owner’s consent, for the private use of another” violates the Constitution).

Roger,

I’m not a huge fan of using public bonds for private development either, but at least it does not directly take anyone’s property. Because it effects all tax payers equally the costs and benefits are much more equally distributed and opposition is easier to organize. When the local government seizes someone’s home (with compensation) to give to a developer to build a Barnes and Noble, the benefits are widely distributed, but the costs are born by a very small group of people who have to relocate.

The argument that I see happening here is coming down to what is meant by “Public Use.” Seems that the CT state supreme court has decided that it means “Public Benefit” rather than a true sense of “use.”

This I believe is a substantial abuse of the intents of the fifth amendment and the later application of the fourteenth amendment against states abuse of eminent domain. Findlaw has an interesting piece on this discussion at this link:
http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html

If this is allowed, this will be a true liberalization and even socialization of property rights.

I also believe that there is definitely a political aspect to this that hasn’t been spoken to. There is no city board or city manager that could do this. The citizens would still require representation in the city’s policy making. In fact I would say that this could easily be stopped by the city’s citizens if they so desired. I find it unlikely that a citizenry would castrate their ability to force a vote on a subject that seems to be very important to their own basic rights. I also understand how city managers work and that they are under contract to perform management, but they do not set policy for acquisition of property nor the related taxation of the citizens for that acquisition.

I am appalled that there is no reported political undertaking in this. I would have thought that the citizenry would see this as a direct threat. Once they have allowed this to occur to some of them, who would be next?

The only reason I can see that there isn’t any political movement, is that the vast majority of the citizens support this action. I hope that they pay for that poor decision.

The argument that I see happening here is coming down to what is meant by “Public Use.” Seems that the CT state supreme court has decided that it means “Public Benefit” rather than a true sense of “use.”

This I believe is a substantial abuse of the intents of the fifth amendment and the later application of the fourteenth amendment against states abuse of eminent domain. Findlaw has an interesting piece on this discussion at this link:
http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html

If this is allowed, this will be a true liberalization and even socialization of property rights.

I also believe that there is definitely a political aspect to this that hasn’t been spoken to. There is no city board or city manager that could do this. The citizens would still require representation in the city’s policy making. In fact I would say that this could easily be stopped by the city’s citizens if they so desired. I find it unlikely that a citizenry would castrate their ability to force a vote on a subject that seems to be very important to their own basic rights. I also understand how city managers work and that they are under contract to perform management, but they do not set policy for acquisition of property nor the related taxation of the citizens for that acquisition.

I am appalled that there is no reported political undertaking in this. I would have thought that the citizenry would see this as a direct threat. Once they have allowed this to occur to some of them, who would be next?

The only reason I can see that there isn’t any political movement, is that the vast majority of the citizens support this action. I hope that they pay for that poor decision.

Well, I just had to read this case for my Property class, and my personal prediction is that they’ll let the ruling stand. The court does reserve some authority to judge whether or not the “public use” was actually such, but they give a HIGH degree of deference to the legislative determination on that issue. After Midkiff, my read is that any taking that transfers property to private owners is going to pass judicial scrutiny as long as (1) the private benefit is anicllary to the public benefit being advanced, and (2) the legislature had some rational basis for believing that the taking would generate that public benefit. Unless they want to overrule Midkiff, I have trouble seeing them overturning the lower court’s ruling.

Belle–this case is a little tough to predict, but I think most court-watchers would assume that the five conservatives–who have been expanding the “regulatory takings” doctrine–would strike the action, and this is also a case that is likely to peel off some liberals. It’s a little hard to predict, but takings has been one area where the Rehnquist has made a major shift in doctrine.

It should be noted that the use of eminent domain is essential for redevelopment projects. In my hometown, the city used it to redevelop a blighted area (truly blighted–drug houses, empty lots, etc.), bringing in a Home Depot and a Costco. A portion of the resulting tax revenues is used in the surrounding neighborhood, for improvements to infrastructure and home repairs. Without eminent domain, the project simply couldn’t have happened. Someone would have held out, and that would have been the end of it.

At the same time that this project was being built, a neighboring first-ring suburb used eminent domain to clear out some businesses (things like plumbing supply, etc.) to give a favored car dealership (!) a better location.

There are clearly uses and abuses of this power.

Which isn’t to say anything about whether these uses are constitutional.

Cranky-
The question isn’t whether there are abuses in the use of eminent domain. Clearly there are. (And just as cleary there’s no constitutional right for developers, etc., to claim someone else’s property. The question is, can the someone else assert a constitutional right to prevent the taking?)

There are, without doubt, very many developsments–particularly, as I said, redevelopment projects–that wouldn’t happen without eminent domain. Redevelopment projects are more expensive to begin with, compared to greenfield development. The additional costs imposed by the absence of eminent domain simply means that most of these projects won’t happen. Some may still happen, but most will not. Certainly the example in my hometown wouldn’t have happened. Not because the land was “worthless”–I never said that–but because the costs of acquisition and planning in the absence of eminent domain wouldn’t have justified the project. (If the retailer’s actions are going to be interpreted, why interpret them to mean what you’d have them mean? For example, the fact that the retailers hadn’t moved in before the city acquired and cleared the property means the development wasn’t worth doing if the city wasn’t going to acquire and clear the land.) And I pointed out the money flow, in part because in the particular example some of the money flowed to inner-city residents in the surrounding area–residents who also can now go to “big box” retailers without driving for 40 minutes.

One question that interests me about this:

Suppose that instead of a government exercising eminent domain, we had a private developer who had sold the land subject to a covenant which included words similar to the takings clause of the constitution, that is, reserving the right to resume land on just terms and for a public (or community) purpose.

Which side would the Reason Foundation take in such a case?

Syd, I think you’re confusing US city government with the British (and possibly Australian? IDK) system, which tends to be — gross generalization — more representative and more responsive, but also more politicized.

The US used to be the same way, but gross civic corruption in the late 19th and early 20th century produced a couple of waves of reform. These pushed many US municipalities towards city managers, appointed city boards, and other systems giving less (it was hoped) room for graft and cronyism. Very very very broadly speaking, municipal government in the US tends to be more professional and technocratic, less democratic and responsive, than elsewhere in the Anglosphere. This is especially so in smaller cities and suburbs.

Bizarre. This is yet another example of the American distrust of democracy, to retreat from it rather than reforming it when encountering problems. No wonder you still have an electoral college, and no national electoral commission, after all these years. When finding tendency, when encountring difficulties, to retreat from democract

: And if there isn’t a majority of townsfolk to stop the ee-vul councillors,
: why enrich lawyers by fighting a court case?

I’m not sure I like you doing the ingenue thing, Syd. “If there isn’t a majority of townsfolk to stop the town from passing the curfew for the darkies, then why enrich lawyers?”

Again, it just seems like US lawyer overuse syndrome – to resort to lawyers for something as simple as a political problem. As always, it’s another country and we should respect the fact they do things differently their.

The fact that voters don’t much object to something, doesn’t mean that something is constitutional and wise.

I’m with Belle here… the Court has the power to define public use, and IMO this ain’t it.

/What/ isn’t public use? You must have compulsory acquisitions to build roads? What if the road is build by a private corporation and they get to charge tolls? Is that public use? How does this differ from a shopping mall?

All this has already happened in Richfield, Minnesota for new Best Buy Corp HQ.

Richfield used to be a collection of working class single-family 50-yr old homes. The City condemned homes, businesses and auto dealerships, provided ‘just’ compensation and then gave the land to Best Buy for the spanking new HQ building. Much higher tax base.

http://www.goodjobsfirst.org/pdf/sw1.pdf

John Quiggin: Unless I completely misunderstand your hypo, your example is not parallel as the transaction you propose is in all aspects voluntary. Of course a seller can create restrictions on future buyers — so long as those buyers accept them. Here we have sale compelled by government, not voluntary agreement to sell.

In general: Eminent domain to transfer property from one owner to another private owner is simply not needed as a tool of urban redevelopment. We don’t allow it in Washington State and we are doing fine. It’s a cheap shortcut.

The right of eminent domain has been abused for decades. There is, however, understanderable use for this concept when major public projects are needed in order to improve a locality. However, the misuse of this draconian measure, the confiscation of a person’s property for less than public gain, is well documented. I know. This confiscation happened to my family in the 1960’s in Hartford. Hartford Redevelopment proceeded to confiscate land under this status, the reasoning was to provide additional needed land to insure Underwood Typewriter Corporation’s expansion. State Supreme Court ruled in favor of Hartford. My father remained obstinate and as a result my family was forced to move by sheriff writ 2 weeks before Christmas in the dead of winter. Surfice to say, the Underwood Typewriter Co. moved during that period. Most of the land today, more than three decades later, remains fallow. At least some of the new ownership of this land fell into the hands of well known families of politicians. I would say this was dammed abuse of eminant domain. No freedom from tyranny here. What ever the motivations of the property owners of New London, be it holding out for increased compensation or not, they have a right to keep their land. Period. There is an old English tradition. Something that states the principle about a man’s home still being his castle.

It is imperative that the Court change the direction of the use of eminent domain. What is happening in Kelo and in multiple other cases across the country is the anthesis of Midkiff. In Midkiff, the Justices approved the use of eminent domain to place the land into the hands of many due to Hawaiii’s housing crisis. Presumably the public benefitted from that. But from Midkiff has grown Kelo and other cases where government takes from the little person without resources to give to large businesses who could pay fair maket value or place their facilities elsewhere. If any purported economic benefit is to be received, it is a trickle down theory, especially with deals such as $1 a year lease. If the government can take private property for any use, then what is the meaning of the limitation of public use? Passing the property to private entities through redevelopment agencies does not mean that private entities do not contol the land. So shall we be intellectually honest and agree that all land in this country does apparently belong to the “king” and we lease it until the “king” decides that it has a better use for it? They don’t call it eminent domain for nothing. The Founders must be turning over in their graves! What they anticipated as a public use was roads and schools and things like the railway. Everyone benefitted from that. They did not anticipate that Pfizer and Costco would be the receipient of public largess and the destruction of private property.
The brief does give a way of measuring the validity of the use. I do not find that the petitioners are anti-government but that they are for private property rights. They try to point out the obvious- that private businesses are the ones who benefit from these types of cases.
What is amazing to me is that the same corporations that decry government “interference” in their business because of taxation and regulations, have no problem using those laws for their own benefit. These corporations want a lassiez faire relationship with government until they blackmail some desperate city and then try to get everything they can out of those taxpayers. What I would like to see is what their position would be if Costco wanted to condemn Pfizer. It is really a matter of who has the political clout, under the standard outlined by the Conneticut court and not one of which the public sees any actual benefit.
The Michigan court is on the right track by overruling Poletown. Hathcock is a step in the right direction. But it does not go far enough. The states have zoning powers and can use that to remove blight. They can enforce their public health rules. If too few people own land, that is sad but it is not really the government’s place to take it away and give it to others.
This Court should have the fortitude to stand up to these local politicians and say: Enough already. There is NO public use for things that are not to be used by everyone. To the businesses they should say, negotiate a buyout of the properties and it people do not want to sell their homes at any price, learn to live with it. Grow up! You are NOT more important than your neighbor because you have more money, can buy up these small town politicians and can dangle your wares in front of several of these small towns. Pick a town and make your deals, if you can’t too bad. As Trump says, its not personal- it’s just business. in fact, I think TRump once had to build around a small business that would not sell. If he can do it, so can the rest of these businesses.

It is imperative that the Court change the direction of the use of eminent domain. What is happening in Kelo and in multiple other cases across the country is the anthesis of Midkiff. In Midkiff, the Justices approved the use of eminent domain to place the land into the hands of many due to Hawaiii’s housing crisis. Presumably the public benefitted from that. But from Midkiff has grown Kelo and other cases where government takes from the little person without resources to give to large businesses who could pay fair maket value or place their facilities elsewhere. If any purported economic benefit is to be received, it is a trickle down theory, especially with deals such as $1 a year lease. If the government can take private property for any use, then what is the meaning of the limitation of public use? Passing the property to private entities through redevelopment agencies does not mean that private entities do not contol the land. So shall we be intellectually honest and agree that all land in this country does apparently belong to the “king” and we lease it until the “king” decides that it has a better use for it? They don’t call it eminent domain for nothing. The Founders must be turning over in their graves! What they anticipated as a public use was roads and schools and things like the railway. Everyone benefitted from that. They did not anticipate that Pfizer and Costco would be the receipient of public largess and the destruction of private property.
The brief does give a way of measuring the validity of the use. I do not find that the petitioners are anti-government but that they are for private property rights. They try to point out the obvious- that private businesses are the ones who benefit from these types of cases.
What is amazing to me is that the same corporations that decry government “interference” in their business because of taxation and regulations, have no problem using those laws for their own benefit. These corporations want a lassiez faire relationship with government until they blackmail some desperate city and then try to get everything they can out of those taxpayers. What I would like to see is what their position would be if Costco wanted to condemn Pfizer. It is really a matter of who has the political clout, under the standard outlined by the Conneticut court and not one of which the public sees any actual benefit.
The Michigan court is on the right track by overruling Poletown. Hathcock is a step in the right direction. But it does not go far enough. The states have zoning powers and can use that to remove blight. They can enforce their public health rules. If too few people own land, that is sad but it is not really the government’s place to take it away and give it to others.
This Court should have the fortitude to stand up to these local politicians and say: Enough already. There is NO public use for things that are not to be used by everyone. To the businesses they should say, negotiate a buyout of the properties and it people do not want to sell their homes at any price, learn to live with it. Grow up! You are NOT more important than your neighbor because you have more money, can buy up these small town politicians and can dangle your wares in front of several of these small towns. Pick a town and make your deals, if you can’t too bad. As Trump says, its not personal- it’s just business. in fact, I think TRump once had to build around a small business that would not sell. If he can do it, so can the rest of these businesses.