Monday, January 23, 2006

Eminent Domain

I want to give you my feelings on the issue of Eminent Domain and the drives that have been started to take property from Justices Stevens and Souter. This entire issue is fraught with emotions and questions about government power.

When I began this piece, I was out to lambaste a recent Supreme Court decision (Kelo vs. New London) as abetting an abuse of governmental power. I admit that I had a preformed notion and that my gut feeling was for the “little guy” – that the government should not have the power to take people’s homes and turn them over to a private development interest. That feeling has not changed. But as I read more of the case law behind the recent Supreme Court decision, I have come to understand why the vote on this case was so close – it was decided by a 5-4 margin.

I am not a lawyer, but I am able to read and form opinions by myself. Many of the people I debate with insist that since they are not lawyers, they can’t argue things using information from actual laws or court rulings. Personally I believe that is the lazy way out of a debate. As citizens we are bound by many, many laws. And as we all know, ignorance is not a defense. Therefore it is incumbent on us all to read and do our best to understand the laws that govern us, and the way those laws are being used.

Let’s start at the beginning. In this issue that would be Article V of the Constitution of the United States of America:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, 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.

The key phrase here is “…nor shall private property be taken for public use…”. I would guess that any regular person reading this, including me, would note that property should only be taken for public use. And that is the crux of the issue.

The Case

In 1997, Susette Kelo purchased a home in the Fort Trumbull section of New London, Connecticut. Fort Trumbull is an old-fashioned neighborhood of well maintained family homes, with views of Long Island Sound. There are families there with roots that go back over 100 years. Ms. Kelo planned to live there for many years.

The City of New London decided that the land of Fort Trumbull could put to better use. With that in mind they turned over their Eminent Domain power to a private corporation – the New London Development Corporation. NLDC put together plans for economic development of the Fort Trumbull area, and began the process of taking private property from the homeowners. According to the corporation’s web site their purpose is:

The New London Development Corporation (NLDC) is committed to creating public-private partnerships that act as an engine for economic development in New London. The goals of this private, not-for-profit organization are to increase the city's tax base, to promote an increase in the number of jobs available in the city and to enhance the quality of life for New London's residents.

In the long run, Ms. Kelo sued the City of New London on the grounds that the seizure of her, and the other family’s, property was in violation of her Fifth Amendment rights. The case eventually came before the Supreme Court, and on June 23, 2005 a decision was handed down in favor of New London. The decision in Kelo vs. New London was very close with a 5-4, split amongst the Supreme Court Justices. The decision in this is also considered quite controversial in that many people believe that it has undermined homeowner’s rights to protection against government seizure of their homes. And that is the source of the dissatisfaction with Justices Souter and Stevens.

The Supreme Court Ruling and the Definition of Public Use

In the Syllabus of the ruling for the Kelo vs. New London case, it is stated:

The city’s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. 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. As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan’s comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court’s review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment.

As I read through this part of the case, the thing that kept coming to the forefront is, “Well – what the heck does public use mean.” To me it seemed simple – parks, utilities, rail roads, etc. But apparently there has been years and years of legal debate on this particular subject. According to this article at FindLaw, it appears that my definition of “public use” was much too narrow (footnotes from original deleted – see the original for more; emphasis mine):

At an earlier time, the factor of judicial review would have been vastly more important than it is now, inasmuch as the prevailing judicial view was that the term ''public use'' was synonymous with ''use by the public'' and that if there was no duty upon the taker to permit the public as of right to use or enjoy the property taken, the taking was invalid. But this view was rejected some time ago. The modern conception of public use equates it with the police power in the furtherance of the public interest. No definition of the reach or limits of the power is possible, the Court has said, because such ''definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . . Public safety, public health, morality, peace and quiet, law and order--these are some of the . . . traditional application[s] of the police power. . . .'' Effectuation of these matters being within the authority of the legislature, the power to achieve them through the exercise of eminent domain is established. ''For the power of eminent domain is merely the means to the end.'' Traditionally, eminent domain has been utilized to facilitate transportation, the supplying of water, and the like, but the use of the power to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent.

The Supreme Court has approved generally the widespread use of the power of eminent domain by federal and state governments in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in place of deteriorated housing, and the promotion of aesthetic values as well as economic ones. In Berman v. Parker, a unanimous Court ob served: ''The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.'' For ''public use,'' then, it may well be that ''public interest'' or ''public welfare'' is the more correct phrase.

Reading this certainly opened my eyes. It would seem that the practice if legislating from the bench has been the reality for much longer than I had considered. It appears that to go from the traditional definition of “public use” to the one we have today was not done by “rule of law”, but rather by judicial decision. And while we see the Court deferring to the power of the individual states, as should be the case, there are times when it is necessary for someone to intervene for the “little guy” – for us regular citizens. And we can take it for granted that the homes of the Kennedy’s, Bush’s, Clinton’s, Kerry’s, and their like, will never be threatened.

The Opinions

As I said before, this case was very close. It is therefore necessary to do a review of the opinions of the Court. The first part quoted below is the majority opinion penned by Justice Stevens (as always, emphasis mine):

Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.

As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U.S., at 245 (“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”); Missouri Pacific R. Co. v. Nebraska, (1896). Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A.2d, at 536. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute challenged in Midkiff, 467 U.S., at 245, the City’s development plan was not adopted “to benefit a particular class of identifiable individuals.”

On the other hand, this is not a case in which the City is planning to open the condemned land–at least not in its entirety–to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., Fallbrook Irrigation Dist. v. Bradley, 158—164 (1896). Thus, in a case upholding a mining company’s use of an aerial bucket line to transport ore over property it did not own, Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” Strickley v. Highland Boy Gold Mining Co., , 531 (1906). We have repeatedly and consistently rejected that narrow test ever since.

One of the cases the Supreme Court relied on in ruling in this case was Berman vs. Parker. In that case a store owner whose store was in the middle of a blighted area of Washington, DC, claimed that his store was in good shape – that it was not blighted. The Court ruled against his claim, and Stevens notes this in his opinion in Kelo:

The Court explained that “community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis–lot by lot, building by building.” Id., at 35. The public use underlying the taking was unequivocally affirmed:

“We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive…. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” Id., at 33.

Here the Court has overtly based the decision on both Midkiff and Berman. The problem with those cases, according to Justice O’Connor (see below) is that, “In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society–in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm.” Stevens went on to say:

For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.

And finally the Court states:

Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project. “It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” Berman, 348 U.S., at 35—36.

In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.

As we can see, and as I discovered, it appears that the Supreme Court made the ruling in this decision on a few narrowly defined cases. Personally, I find myself more closely aligned with the dissenting opinion of Justice O’Connor. She states:

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.

This is much closer to what I believe was the intent of the original framers of the Constitution (and admittedly, I am not an expert in this and can only rely on my basic intuition). And then Justice O’connor’s opinion turns specifically to the cases that the majority relied on:

This case returns us for the first time in over 20 years to the hard question of when a purportedly “public purpose” taking meets the public use requirement. It presents an issue of first impression: Are economic development takings constitutional? I would hold that they are not. We are guided by two precedents about the taking of real property by eminent domain. In Berman, we upheld takings within a blighted neighborhood of Washington, D.C. The neighborhood had so deteriorated that, for example, 64.3% of its dwellings were beyond repair. 348 U.S., at 30. It had become burdened with “overcrowding of dwellings,” “lack of adequate streets and alleys,” and “lack of light and air.” Id., at 34. Congress had determined that the neighborhood had become “injurious to the public health, safety, morals, and welfare” and that it was necessary to “eliminat[e] all such injurious conditions by employing all means necessary and appropriate for the purpose,” including eminent domain. Id., at 28. Mr. Berman’s department store was not itself blighted. Having approved of Congress’ decision to eliminate the harm to the public emanating from the blighted neighborhood, however, we did not second-guess its decision to treat the neighborhood as a whole rather than lot-by-lot. Id., at 34—35; see also Midkiff, 467 U.S., at 244 (“it is only the taking’s purpose, and not its mechanics, that must pass scrutiny”).

In Midkiff, we upheld a land condemnation scheme in Hawaii whereby title in real property was taken from lessors and transferred to lessees. At that time, the State and Federal Governments owned nearly 49% of the State’s land, and another 47% was in the hands of only 72 private landowners. Concentration of land ownership was so dramatic that on the State’s most urbanized island, Oahu, 22 landowners owned 72.5% of the fee simple titles. Id., at 232. The Hawaii Legislature had concluded that the oligopoly in land ownership was “skewing the State’s residential fee simple market, inflating land prices, and injuring the public tranquility and welfare,” and therefore enacted a condemnation scheme for redistributing title. Ibid.

The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society–in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28—29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn.

The last part is the key. In the current case, Kelo, it was not even claimed that a “harmful” condition existed. It was just that the city of New London wanted to harvest additional revenue. Justice O’Connor concludes with:

It was possible after Berman and Midkiff to imagine unconstitutional transfers from A to B. Those decisions endorsed government intervention when private property use had veered to such an extreme that the public was suffering as a consequence. Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644—645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.). This is why economic development takings “seriously jeopardiz[e] the security of all private property ownership.” Id., at 645, 304 N. W. 2d, at 465 (Ryan, J., dissenting).

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. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).

I don’t know about you, but that fits my feelings about “big government” vs. the “little guy” much better. Hopefully, there will be a regression at some point to, at least on this issue, to take the Constitution more literally.

Where Does All This Lead

I started this discussion in relation to the efforts of two separate groups to take land from Justices Souter and Stevens using Eminent Domain. Underneath everything, I would like to see those efforts succeed. But, I think they will not. The reason is simple. Eminent Domain action can only be undertaken at the direction of a government entity – a legislative body. I suspect that the groups in question will find that a difficult hurdle to overcome.