I don’t know how many people on here are legal geeks or Constitutional afficianados, but there is an important case in the area of Emminent Domain law being argued before the Supreme Court right now.
For those who care about the “little guy,” there is one aspect to the case – there’s another for those who just don’t like the idea that the government can take property (and pay “just compensation”, though that tends to be very low compared to market value).
It gets extremely tricky for Constitutional Originalists, because it seems on the face of things that the Takings Clause was only meant to apply to the Federal government.
Here’s a good article from Forbes summarizing the case:
Supreme Court Takes On The Public
Dan Ackman, 02.23.05, 9:42 AM ET
NEW YORK - Home owners in New London, Conn., have been ordered to sell their homes near Long Island Sound so the state, exercising public domain, can build what it contends is a version of industrial paradise. The home owners say that they should not be forced to sell and that the law gives no favor to grand development plans. So far they have lost, but yesterday the U.S. Supreme Court gave them another shot.
The case, known as Kelo v. City of New London, has been closely watched because it affects the traditional right of cities and states to condemn land and pay “just compensation” for “public use.” In this case, the “public use” is parking lots, office blocks and a luxury hotel as well as a park, all of which would complement a Pfizer (nyse: PFE - news - people ) research facility and lead to revitalization of the waterfront. With the possible exception of the park, the home owners say that this use isn’t public and that they shouldn’t have to sell even if the compensation is just.
The Connecticut Supreme Court denied this claim, saying it was up to public officials to decide what uses are public, and it threw the wrecking ball back into the court of the private, nonprofit development corporation that is promoting the project. The Connecticut case was close, though–the vote was 4 to 3. On appeal, 25 “friends of the court,” an unusually large number, have filed briefs.
The city says its plan does benefit the public because office parks and hotels will generate more tax revenue than do the middle-class homes that are now on the site. But the home owners say the public benefit, assuming it occurs at all, is only by virtue of the private gain for Pfizer and other businesses that may wind up on the land.
The Institute for Justice, which describes itself as a “libertarian public interest law firm” and is arguing the home owners’ case, called the Connecticut ruling “an invitation to disaster because every business generates more taxes than a home does, and every big business generates more taxes than a small one. If the ruling stands, any property can be taken through eminent domain.” The institute contends that “public use” should mean a road or a public building, not a private business, even if that business generates public tax revenue.
The lawyers also say that state and local governments are “abusing the power of eminent domain” increasingly to “to take private homes and businesses for the benefit of other, more politically favored private businesses who promise more jobs and taxes.” In just five years, they say, governments filed or threatened condemnation of more than 10,000 properties for private parties.
In a companion case also heard by the Supreme Court yesterday, the state of Hawaii appealed a ruling it had lost in the 9th U.S. Circuit Court of Appeals. The appeals court decision had overturned a state law that limited the rent that oil companies could charge to independent gasoline dealers who lease their stations. In a case brought by ChevronTexaco (nyse: CVX - news - people ), the appeals court said that a rent cap amounted to an unconstitutional “taking” of property without, in this case, the explicit use of eminent domain or the paying of just compensation.
The appeals court also found that the state had not proved that lower gas station rents would result in lower retail gasoline prices. Without such proof, the appeals court judges would not defer to the judgment of legislators, as they normally might.
The question of who decides is at the heart of both cases, making the Supreme Court battle an uphill fight for Connecticut home owners. What makes this case unusual is that there was no argument by the city that the land was a “slum” or “blighted,” which is the traditional justification for urban development schemes.
The home owners say that if higher taxes can justify the move, taking the land would effectively allow the state to displace any private home so long as it says it will put up an office or even a larger private home. In fact, in this case there is no specific plan for some of the land parcels that would be taken.
“How can you have a ‘public use’ for taking someone’s property, which the Constitution demands, when you don’t know what that use will be?” lawyers for the home owners ask. But the Connecticut court rejected this argument, too. “While there was no development commitment or formal site plan in place for parcel 4A, this is not necessarily indicative of bad faith, unreasonableness or abuse of power,” the court concluded.
The question again came down to who decides, and the Connecticut judges answered by saying “not us.” Look for the U.S. Supreme Court justices to reach the same conclusion. But the mere fact that Susette Kelo and her neighbors have gotten as far as they have will give the state-sanctioned developers some second thoughts the next time around.
Here’s a link to a Washington Post article that does a good job summarizing the arguments of the two sides: