23. June 2005 • Murph
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The United States Supreme Court today ruled in favor of the City of New London, CT’s power to use eminent domain to take (with just compensation) private property from one owner in order to clear the way for private redevelopment. The majority opinion was written by Justice Stevens, with “stinging” dissent by O’Conner, Scalia, Rehnquist, and Thomas.
The key distinction in the case was whether a local government’s power of eminent domain could be used to acquire land for a public purpose that was not a public use – with “slum” clearance or “economic development” often used as “public purposes” that involve delivering land to private developers; taking property for a “public use”, such as a street, school, police station or other publicly held building, is not questioned.
This ruling is the opposite of one made last summer by the Michigan Supreme Court last summer in County of Wayne v. Hathcock, in which that court declared only public uses to be valid results of eminent domain actions, overturning and criticizing its own 1981 Poletown ruling.
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I’m curious how the Michigan Hathcock decision interacts with the US Kelo decision. I see two options:
1. Kelo overturns Hathcock.
2. The Michigan State Constitution, as interpreted in Hathcock, provides stricter limits on uses of eminent domain than does the US Constitution, as interpreted in Kelo.
—Murph. Jun. 23 '05 - 07:08PM #
And, by the way, my understanding is this—governments had already been able to use eminent domain to acquire land for public use (roads, parks, etc) and ALSO to clear ‘blighted’ areas. But now, it seems, even a finding of ‘blight’ is no longer needed—it is permissible for governments to condemn property whenever they can can be plausibly argue that doing so will provide a public benefit—where ‘public benefit’ may be nothing other than a new different private use of the property that will generate more economic activity and tax revenue than the current use. Which is to say just about any time they feel like it (or any time a big developer has enough power & influence).
That said, there is nothing that prevents states from having more restrictive versions of eminent domain (the Kelo majority opinion makes this point explicitly, in fact).
—mw Jun. 23 '05 - 07:38PM #
I hadn’t read through the Kelo opinion entirely – if it allows more restrictive state versions, then, yes, Michigan requires public use, as Hathcock was based on the Michigan Constitution.
I had thought, though, that “blight” removal was the quintessential example of “public purpose” that other exercises for public purpose were based in.
Ah, well. We’ll see if Mr. Stephen K Postema, City Attorney, answers my e-mail. He ought to know the answer.
—Murph. Jun. 23 '05 - 07:52PM #
—David Jun. 23 '05 - 08:08PM #
—Steve Bean Jun. 23 '05 - 09:53PM #
Eminent domain is perhaps my least favorite tool.
—Murph. Jun. 23 '05 - 11:22PM #
—Paul Jun. 24 '05 - 03:54AM #
—John Q. Jun. 24 '05 - 04:44AM #
—Matt Jun. 24 '05 - 06:54PM #
Just because a case is supported by some extremist opinion doesn’t mean that it is a result of that extremist opinion or in itself extremist. “My house” is hardly an extreme conception of property rights.
—Murph. Jun. 24 '05 - 07:24PM #
I take your point about deferential review but in broader perspective the New London case is part of the anti-regulation agenda that wants to dispense with all environmental checks on private land use, have homeowners in Oregon compensated if they can’t turn their farms into subdivisions, and so forth. It is not an isolated case but one chosen by conservative groups precisely for this purpose, with the same sort of sympathetic clients that they choose in other cases (working-class white women for the anti-affirmative action litigation, low-income minority families for the private school voucher litigation).
This is a slippery slope argument, but the problem is that a precedent in this Supreme Court case could have been pushed much further by anti-regulation lower courts, and that is why the four most conservative justices supported the homeowners despite their lack of concern about such individuals in so many other cases. Granted it is a tough case for those of us who know that urban renewal and eminent domain et. al have so often been used to displace minorities and the poor and clear land for the benefit of private developers more than the people who live there. But eminent domain is a necessary tool of government; it just needs to be used wisely and progressively.
—Matt Jun. 25 '05 - 04:51PM #
—Phil Roy Jun. 27 '05 - 02:48AM #
WaPo article
—Dale Jul. 1 '05 - 02:27PM #
While this may be a pet issue of the same groups of people who backed the Oregon amendment, that doesn’t necessarily mean the New London takings were right.
And I’m tragically disappointed in Pelosi’s response (in Dale’s WaPo article). The House voted to not send federal funds to any project using eminent domain for profit-generating development activities, and Pelosi decries it as a violation of the separation of powers, undercutting the Supreme Court? Please. As if the Federal government has a duty to fund everything that somebody may do. That’s the weakest imaginable protest.
—Murph. Jul. 1 '05 - 03:29PM #
—Murph. Jul. 1 '05 - 03:33PM #
O’Connor announced her retirement, btw.
—Dale Jul. 1 '05 - 03:34PM #
—Dale Jul. 1 '05 - 03:35PM #