quote: An attorney for a group of Connecticut homeowners told the Supreme Court yesterday that his clients have a constitutional right to stay in their houses even though their city says it needs the sites for privately developed offices, hotels and parking, in a case that could affect property rights across the country.
The lawyer, Scott G. Bullock of the libertarian Institute for Justice, said that if New London, Conn., can use its power of eminent domain to force Susette Kelo and six other owners to sell for the sake of jobs and tax revenue private-sector development brings, the Fifth Amendment guarantee that private property cannot be taken for "public use" without just compensation would be a dead letter.
"Every home, church or corner store would produce more jobs and tax revenue if it were a Costco or a . . . shopping mall," Bullock said.
The court seemed conflicted about the issue, with members of the court posing equally demanding questions of each side.
There were two empty chairs at the bench, with Chief Justice William H. Rehnquist absent because of illness and Justice John Paul Stevens out because his flight from Florida, where he maintains a home, had been canceled.
That created an opportunity for Justice Sandra Day O'Connor, the most senior remaining justice, to become the first woman to preside over an oral argument at the court.
Sounding skeptical that there could be a blanket rule against using eminent domain to promote private redevelopment, O'Connor pressed Bullock repeatedly to say under what circumstances it might be allowable.
When Bullock suggested that a "minimum standard" might be to require cities to show there is a good chance that the promised public benefits of redevelopment might materialize, O'Connor replied, "Do you really want the courts in the business of deciding whether a hospital will be successful . . . or a road will be successful?"
But when Wesley W. Horton rose to argue on New London's behalf, O'Connor asked whether it would be "okay" for a city to replace a Motel 6 with a Ritz-Carlton "if the city felt Ritz-Carlton could pay more tax."
Horton said yes, prompting several justices to pepper him with questions about the basic fairness of shifting resources from one set of private owners to another, richer, set.
"What this lady [Kelo] wants is not more money," Justice Antonin Scalia said. "She says I'll move if it's for the public good, but not just so that someone else can pay more taxes. This is an objection in principle that 'public use' in the Constitution seems to be addressed to."
Relying on post-World War II Supreme Court decisions that broadened the definition of "public use" to include not only roads or bridges but also slum clearance and land redistribution, cities have used eminent domain frequently to foster private-sector redevelopment in recent years. Especially in the Northeast, it is a way to spur revitalization in old urban centers when undeveloped suburban land is running out.
Between 1998 and 2002, more than 10,000 threatened or filed condemnations involved a transfer of property from one private party to another in 41 states, the Institute for Justice reports, with states using various definitions of "public use" to justify them.
This case is important. I have no in-depth understanding of how the Court will interpret "public use," but forcible condemnation to transfer property from one private owner to another strikes me as a gross abuse of state power. Even if it's constitutional, it's wrong.
posted
Yeah, I saw this. This seems like a prime case for Rehnquist and Co. to bring out their property rights lovin' rulers and slap that local government back down. This honestly reminds me of the really really broad interpretations of the Commerce clause they have rejected in the past. Of course, I'm sure that if these people do win, the first thing they'll do is move, since they're living in a Ghost town now...
posted
Speaking of property rights, this doesn't have to do with Eminent Domain, but it's quite possibly the best property fight story I've ever heard in my life. It contains Corruption, Intruige, Suspense, and Ross Perot. Only thing it's missing is sex, right?
posted
Laws are irrelevant to morality, and forcing someone out of their home is wrong. Edit: assuming the home is private property and not government property, of course.
posted
I remember there being a bunch of articles about stunts like this sometime last year. I hope this case puts a stop to it.
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posted
I've been increasingly concerned about misuses of eminent domain over the last few years; I look forward to seeing where the court goes with this. I'm actually surprised it took this long for someone to make the argument that transferring from a private owner to another private owner does not constitute "public use."
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posted
I've been following this story on NPR and other news outlets for quite some time. It is a very interesting case.
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It will certainly make for some strange alignments on the Court.
The most interesting thing is that the obvious textual argument is that the public use provision is not an explicit limitation - the Constitution does not say that property may only be seized for public use. It says that if it is seized for public use, just compensation is required.
Of course, no one is seriously arguing that just compensation is not required when property is seized for private use; in fact, the town is arguing this is a public use.
I expect some kind of very squishy test with lots of wiggle room that will drive Scalia crazy, even if he concurrs with the judgment. And an interesting historical analysis from Thomas. I have no idea how it will actually come out.
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If SCOTUS decides in favor of the city I'm going to become very worried about large-market stores (Wal-Mart, COSTCO, Sam’s Club, etc...) pressuring cities into "rejuvenating" their worn down urban sprawl into a new, much more taxable, store.
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If you allow the use eminent domain to transfer title from one private owner to another, the line-drawing problem seems insurmountable to me. Generally, we allow elected bodies to decide whats for the public good; courts are ill-equipped for the job. Any test that allows some private transfer but prohibits others will have to be very intrusive, and will almost be guaranteed to be very imprecise.
One possibility is that they could redefine just compensation to include the premium that a developer would have to pay to get an entire neighborhood. As soon as word gets out, the price gets jacked up by everyone. The last holdouts almost always profit handsomely.
I still think using a coercive power in this way is wrong, but if the owners lose, I hope their case comes back up on the compensation issue.
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My grandma had to move out of her first home, which her husband built before he got sick and died, because the city wanted to run a railway through it. I can understand that; that's legitimate public use. She understands it, too, but it still broke her heart at the time. I can't imagine how people being forced to leave to make room for a freakin' mall or Wal-mart (*makes sign against evil*) must feel. That's just wrong.
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What I found most interesting is that the area under question is zoned for commercial use, and has been for years. The few "homeowners" in the area are either living above closed shops or had homes that were grandfathered into the area decades ago.
So this is not a conflict where the city is tearing down people's homes to make way for new industry, but tearing down people's industry to make way for new industry. Which makes me wonder, how much sentimental value is there for a commercial shop?
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posted
A lot, for some commercial shops I've known. But that's besides the point, I think. Sentimental value shouldn't really be a factor, here.
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posted
Ah, but why are the owners not selling if not for sentimental value? The area is horribly blighted (something like 80 percent vacancy rate for industry, IIRC).
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posted
I've been paying attention to this, too. The whole concept of forcing people to sell out for different private use is just nauseating. I really hope the homeowners win.
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quote:Ah, but why are the owners not selling if not for sentimental value?
I suspect because if the developer had to acquire this property without coercive assistance, it would have to pay a lot more. Hence the compensation issue I brought up earlier.
That aside, I don't doubt that there's at least one person who truly doesn't want to sell for sentimental reasons. If they've lived there all their life, why would they want to move?
posted
Don't forget that if this has gone to SCOTUS, it isn't just about these idividuals anymore. I recently read of a similar case where a town labeled one of their neighborhoods "blighted" in order to force owners to sell to a developer. The neighborhood in question didn't have any kind of real vacancy rate and the area wasn't particularly depressed. In fact, one of the residents pointed out that the city had raised their definition of "blight" specifically in order to encompass the area in question and that in fact the mayor's own house would qualify as "blighted" by that definition. (I think it was something like houses had to have at least three bedrooms and two full baths and a garage, etc.). The photos that accompanied the article showed houses in nicer condition that most buildings in the last three neighborhoods I've lived in.
My point is that whatever ruling applies to the cast before SCOTUS will likely be used to decided the merits of the case I read about. (Or am I totally wrong about that, Dag?)
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No, you're right Karl. Whatever SCOTUS decides here will be used as binding precedent for future eminent domain cases.
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quote:My point is that whatever ruling applies to the cast before SCOTUS will likely be used to decided the merits of the case I read about.
In principle you're absolutely right, but it's possible this will simply set up lots of future litigation. My big worry is that the test will be very squishy (it almost has to be, doesn't it?) This will force courts to decide if area X is truly blighted, or if private use Y is related to the public interest closely enough.
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That's just wrong.
