Property Rights, Kelo v. New London

[A18]

Kelo v. New London, ___ U.S. ___ (2005)

After approving an integrated development plan designed to revitalize its ailing economy, the city, through its development agent, purchased most of the property earmarked for the project from willing sellers, but initiated condemnation proceedings when petitioners (the owners of the rest of the property) refused to sell. Petitioners brought this state court action claiming, inter alia, that the taking of their properties would violate the "public use" restriction in the Fifth Amendment's Takings Clause.

JUDGES: STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed a concurring opinion. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA and THOMAS, JJ., joined. THOMAS, J., filed a dissenting opinion.

OPINION: JUSTICE STEVENS delivered the opinion of the Court.

In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was "projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas." 268 Conn. 1, 5, 843 A. 2d 500, 507 (2004). In assembling the land needed for this project, the city's development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city's proposed disposition of this property qualifies as a "public use" within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.

... Both sides took appeals to the Supreme Court of Connecticut. That court held, over a dissent, that all of the City's proposed takings were valid. ... The judgment of the Supreme Court of Connecticut is affirmed.

DISSENT: Justice O'Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent. ...

[Emsworth]

The decision was not only unsound, but also one of the worst decisions ever made by the Supreme Court.

The public use clause is just as much a limitation on the power of eminent domain as the just compensation clause. There is a right to be free from the taking of property for private use, just as there is a right to be fully compensated. Thus, any taking for private use is just as unconstitutional as any taking without just compensation.

Public use means nothing more than use by the public. When the government takes the property of one person, and gives it to a corporation, the resulting use is not public but private. In this case, however, that is precisely what New London did. It took Kelo's property, and turned it over to a corporation for "economic development." The Supreme Court has unfortunately transformed the "public use" clause into a "public purpose" clause, and accordingly sustained the seizure. This line of reasoning, however, is highly suspect and entirely invalid.

[A18]

How about eminent domain for telephone lines and similar economic development projects?

[Emsworth]

How about eminent domain for telephone lines and similar economic development projects?

A founding-era dictionary quoted by Justice Thomas in dissent defines "use" as "the act of employing any thing to any purpose." Only when the public actually employs the property in question is the public use clause satisfied. It is insufficient that the public will derive an incidental benefit from the property; the property must actually and directly be employed by the people, like a road, a park, or a post office.

However, when possession of property is turned over to a private corporation, whether for the building of telephone wires or otherwise, the use is not public but private. It is the corporation, not the public, that is employing the property; the public is merely deriving an incidental benefit. The use, therefore, is not public but private.

[DanielX]

The decision was not only unsound, but also one of the worst decisions ever made by the Supreme Court.

^^^^^^^^^^^^^^^

Probably the only ones I can think of that could be worse are Roe V. Wade and Dred Scott . Maybe the Japanese Internment camp one, too. That's roughly it.

[muon2]

The decision was not sound IMO, but I disagree with Thomas' dissent. I find O'Connor's dissent (signed by all four dissenters) a much more rational position. It recognizes the role of a common carrier as providing a public use even if as a private company. It also recognizes the appropriate use of eminent domain to eliminate blight, which may or may not result in the blighted property ending in the possession of a private entity. The elimination of blight can act to improve the health, safety, and welfare of the public and can also qualify as a public use. I do not choose to confuse the use and owner as I feel Thomas does. The majority supported not just immediate well-defined public uses, but also undefined potential uses that causes its error.

[Cubby]

I don't know all the facts but it was a very bad ruling, from what I gather. It looks like this is a case where many ideologies can agree.

Ironically the court case has not been a big issue in Connecticut.

[Emsworth]

It also recognizes the appropriate use of eminent domain to eliminate blight, which may or may not result in the blighted property ending in the possession of a private entity. The elimination of blight can act to improve the health, safety, and welfare of the public and can also qualify as a public use.

I disagree with this view. The Fifth Amendment does not authorize taking for the "public welfare," but only taking for "public use." The latter is a much more limited term; it implies that the property must actually be used or employed by the public, not a private corporation. The mere fact that the public might obtain an incidental benefit is not relevant.

As Thomas argues, "The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law." Nuisance law is entirely distinct from the eminent domain power. It is entirely inappropriate for the government to use the eminent domain power to eliminate blight.

[True Federalist]

Use of eminent domain for utility lines and roads strikes me as a decidedly public use, regardless of whether public or privately operated, as I regard the provision of transportation, whether of people of goods (including such goods as electricity, gas, and water) a a public use .  However, I wouldn't support the use of eminent domain to gather the land used to build an electric  generating plant. This decision effecively gutted any constitutional limits on the use of emminent domain, which is precisely why it was so bad.

[muon2]

It also recognizes the appropriate use of eminent domain to eliminate blight, which may or may not result in the blighted property ending in the possession of a private entity. The elimination of blight can act to improve the health, safety, and welfare of the public and can also qualify as a public use.

I disagree with this view. The Fifth Amendment does not authorize taking for the "public welfare," but only taking for "public use." The latter is a much more limited term; it implies that the property must actually be used or employed by the public, not a private corporation. The mere fact that the public might obtain an incidental benefit is not relevant.

As Thomas argues, "The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law." Nuisance law is entirely distinct from the eminent domain power. It is entirely inappropriate for the government to use the eminent domain power to eliminate blight.

Then government is put squarely into a contradiction. To promote the general welfare is explicit in the preamble, and the protection of health, safety and welfare has been a long-standing duty of the government. A blighted property can be clearly detrimental to health, safety and welfare and thus to the general welfare. Enjoining governemntal action against such pro[ety creates a situation where the government is both expected to act and forbidden to act. I do not believe that is the intent, nor do more than a small minority of legal scholars.

[Emsworth]

Then government is put squarely into a contradiction. To promote the general welfare is explicit in the preamble, and the protection of health, safety and welfare has been a long-standing duty of the government. A blighted property can be clearly detrimental to health, safety and welfare and thus to the general welfare. Enjoining governemntal action against such pro[ety creates a situation where the government is both expected to act and forbidden to act.

I never said that the government may not take action against usage of property that is detrimental to the public health. There certainly are measures the government may take. However, using the power of eminent domain is not one of them.

To repeat the Clarence Thomas quotation, "The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law." As the common law authorities (including Blackstone) make clear, the power of eminent domain is distinct from nuisance law. The former, which may be used at the government's whim, extends to those cases where the public is taking property for its own use. The latter, which requires indictment and trial, extends to those cases where an individual is doing something that adversely affects the public welfare.

[Speed of Sound]

Duh. Obviously Constitutionally unsound. Justify this: "If we can make more money off the land, its ours."

[muon2]

Then government is put squarely into a contradiction. To promote the general welfare is explicit in the preamble, and the protection of health, safety and welfare has been a long-standing duty of the government. A blighted property can be clearly detrimental to health, safety and welfare and thus to the general welfare. Enjoining governemntal action against such pro[ety creates a situation where the government is both expected to act and forbidden to act.

I never said that the government may not take action against usage of property that is detrimental to the public health. There certainly are measures the government may take. However, using the power of eminent domain is not one of them.

To repeat the Clarence Thomas quotation, "The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law." As the common law authorities (including Blackstone) make clear, the power of eminent domain is distinct from nuisance law. The former, which may be used at the government's whim, extends to those cases where the public is taking property for its own use. The latter, which requires indictment and trial, extends to those cases where an individual is doing something that adversely affects the public welfare.

Nuisance law may have had some ability to rectify detrimental properties in the past. Nuisance laws can correct problems with properties where the owner has a willingness to comply. The worst cases feature owners who are willing to flaunt their ability to beat the system. For instance, they might play a shell game of ownership, tie up fines in court indefinitely, or even paty the fines and say "so what?" For these cases there is no last resort in nuisance law for the government to abate the nuisance, and eminent domain is the true last resort. In most cases, where it must be applied, the knowledge that eminent domain exists as a power is sufficient to cause a negligent property owner to abate their nuisance or negotiate a fair sale.

[Ebowed]

A terrible ruling.

[Emsworth]

Nuisance law may have had some ability to rectify detrimental properties in the past. Nuisance laws can correct problems with properties where the owner has a willingness to comply. The worst cases feature owners who are willing to flaunt their ability to beat the system. For instance, they might play a shell game of ownership, tie up fines in court indefinitely, or even paty the fines and say "so what?" For these cases there is no last resort in nuisance law for the government to abate the nuisance, and eminent domain is the true last resort.

I respectfully disagree. The state merely needs to amend the nuisance laws, so that the punishment includes forfeiture of the property in question.

The whole point is that the government may not just take property because it feels that it is not being put to good use. In such cases, an indictment and trial are necessary. The power of eminent domain, normally employable at the whim and caprice of the government, does not apply, the ultimate use of the property not being public.

[Jim Valvano]

Currently 0 to 23.

I cannot remember any poll ever being this one sided in forum history (Including all the frivolous and rediculous ones). It's decisions like this that show that the court isn't just left of the mainstream, it's left of the left wing.

[muon2]

Nuisance law may have had some ability to rectify detrimental properties in the past. Nuisance laws can correct problems with properties where the owner has a willingness to comply. The worst cases feature owners who are willing to flaunt their ability to beat the system. For instance, they might play a shell game of ownership, tie up fines in court indefinitely, or even paty the fines and say "so what?" For these cases there is no last resort in nuisance law for the government to abate the nuisance, and eminent domain is the true last resort.

I respectfully disagree. The state merely needs to amend the nuisance laws, so that the punishment includes forfeiture of the property in question.

The state may not make that punishment for nuisance laws - it would itself be a taking. The courts have narrowly constrained when property may be forfeited as punishment for an offence, and correctly so, IMO.

Currently 0 to 23.

I cannot remember any poll ever being this one sided in forum history (Including all the frivolous and rediculous ones). It's decisions like this that show that the court isn't just left of the mainstream, it's left of the left wing.

I think the poll should have included the three basic views on this case: The majority, the lone dissent of Thomas, and the consensus dissent by O'Connor, Rehnquist, Scalia, and Thomas. Note that Thomas concurred with O'Connor's dissent, but none of the other conservative justices would sign Thomas' opinion. I find very little comment about the O'Connor dissent which shows a much better understanding of the web of rights and constraints that act on local units of government.

[nini2287]

Currently 0 to 23.

I cannot remember any poll ever being this one sided in forum history (Including all the frivolous and rediculous ones). It's decisions like this that show that the court isn't just left of the mainstream, it's left of the left wing.

I think John McCain vs. Adolf Hitler was something like 76-0.  I wonder who voted "constiutionally sound".

[Emsworth]

The state may not make that punishment for nuisance laws - it would itself be a taking.

The takings clause does not extend to fines or forfeitures that punish crimes, just as it does not extend to taxes.

[muon2]

The state may not make that punishment for nuisance laws - it would itself be a taking.

The takings clause does not extend to fines or forfeitures that punish crimes, just as it does not extend to taxes.

I don't know about NJ, but in IL violations of nuisance ordinances are not criminal offenses. They are prosecuted by the local unit of government, not by the State's Attorney. Local units of government may place a lien against property for the fines owed, but that doesn't extend to the taking of the property.

[Emsworth]

I don't know about NJ, but in IL violations of nuisance ordinances are not criminal offenses. They are prosecuted by the local unit of government, not by the State's Attorney. Local units of government may place a lien against property for the fines owed, but that doesn't extend to the taking of the property.

That certainly may be true. But just because one particular state's nuisance laws do not entail the elimination of blight, it does not follow that the eminent domain power may be used for that purpose. To conclude otherwise seems to involve a result-based approach to constitutional interpretation. The text of the Fifth Amendment appears to be quite clear: the taking must be for "public use"; in other words, the property taken must be used by the public.

[A18]

Of course, government can sell public property...

[muon2]

I don't know about NJ, but in IL violations of nuisance ordinances are not criminal offenses. They are prosecuted by the local unit of government, not by the State's Attorney. Local units of government may place a lien against property for the fines owed, but that doesn't extend to the taking of the property.

That certainly may be true. But just because one particular state's nuisance laws do not entail the elimination of blight, it does not follow that the eminent domain power may be used for that purpose. To conclude otherwise seems to involve a result-based approach to constitutional interpretation. The text of the Fifth Amendment appears to be quite clear: the taking must be for "public use"; in other words, the property taken must be used by the public.

Here I disagree with your reversal of the word "use" from noun to a verb. The word has a great many dictionary meaning now is it did in the eighteenth century. You have narrowly selected one. I could equally well couter that in property law the noun "use" includes enjoyment or benefit of a property. The health of the public is certainly a benefit. This meaning can include more than the direct public occupation of the land. As earlier, I note that even Scalia did not subscribe to such a narrow construction of "use" as you propose.

[MaC]

The decision was not only unsound, but also one of the worst decisions ever made by the Supreme Court.

Agreed

[dead0man]

And now for the punchline of this joke....link

The Supreme Court's 2005 decision in Kelo v. City of New London stands as one of the worst in recent years, handing local governments carte blanche to seize private property in the name of economic development. Now, four years after that decision gave Susette Kelo's land to private developers for a project including a hotel and offices intended to enhance Pfizer Inc.'s nearby corporate facility, the pharmaceutical giant has announced it will close its research and development headquarters in New London, Connecticut.

<snip>

That's especially galling because the five Supreme Court Justices cited the development plan as a major factor in rationalizing their Kelo decision. Justice Anthony Kennedy called the plan "comprehensive," while Justice John Paul Stevens insisted that "The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue." So much for that.