kelo v. city of new london and jutice oconnor and justice stevens and taking and public use

The "sexiest" cases on the US Supreme Court's docket for the October 2004 term concerned displays of the 10 Commandments on public property. Several essays to the bar to the left comment on those cases. However, the decision that might have engendered the most vigorous and determined response in the five weeks since it was handed down is Kelo v. City of New London (CT). Indeed, in my own state of Oregon, legislation has been introduced and hearings held already on a bill that would blunt the force of the decision. This essay describes the hullabaloo created by the 5-4 decision of the Court.

The Issue in a Nutshell

The United States Constitution, Amendment 5, provides that "nor shall private property be taken for public use without just compensation." This clause, known as the Takings Clause, proclaims a truth which is intimately familiar to many Americans--government actually can take your property as long as it pays you "justly." Most of the litigation I participated in regarding takings issues related to what "just" compensation was in a particular case. How much money should a utility be compensated if its land was to be taken over by a public utility? How much should homeowners be paid by a utility if some of their land was to be condemned or used for sunken power lines? However, the issue that was litigated here was the "public use" language of the clause. The Amendment requires that when private property is taken, it must be put to "public use." What does that concept entail?

Well, the Supreme Court never asks and answers questions in the abstract. Questions must relate to an actual case brought for consideration. On the docket was a case from New London, CT, a town that had gone through considerable economic hardship over the years, which hardship was exacerbated by the pullout of the Naval Undersea Warfare Center in 1996. When Pfizer Corp., a multinational pharmaceutical giant, decided to build a plant in New London in the late 1990s, the town got into the act and decided that it would piggy-back on the excitement and develop several acres of nearby land, adjoining the Thames River, to complement the Pfizer development. Yet, in order to do this, they had to condemn several parcels of property owned by private individuals. The land would be turned over to a private entity, the New London Development Corporation, and this land then would be sold to developers who would make what we all know now are the ultimate signs in coolness and yuppie-attractiveness: river walks, chic restaurants, condos within walking distance, business parks, etc.

While the US Supreme Court precedents had, in two cases, supported the transfer of private property to other private hands, they only had countenanced it when there was considerable blight or harm in view. No such blight was present here. Thus, the issue before the Court was whether the "public use" clause of the 5th Amendment was flexible enough to encompass a government condemnation and transfer of private property to a private entity without their being any blight on the property. By a 5-4 decision, the Court said it was. The City of New London properly condemned the property, even if it was then given into the hands of another private entity. Interestingly enough, it was the four "liberals" plus Kennedy who said this practice was constitutional, while the three "conservatives," joined by O'Connor, who authored the lead dissent, concluded that this was a bad decision.

The Rhetoric of Dissent

There are tons of other web sites you can consult if you want a "legal analysis" of the majority opinion, written by Justice Stevens. You can also read the opinions themselves. What interests me at this juncture is the apocalyptic imagery used by the dissent in communicating their horror at what the majority had done. Of course, whenever a Supreme Court Justice sneezes, many people think s/he has pneumonia, so that when several Justices present a parade of horribles, as we call them in law, eager people plaster their statements on their web sites immediately, usually next to the banner telling you how you can contribute to the cause. Let me quote the paragraph which will now ring in everyone's mind. Justice O'Connor is speaking of what she considers to be the implication of the Court's decision--that private property can be condemned and given to other private actors if more money can be made off the condemnation.

"The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." And, " 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."

I would venture to say that Justice Scalia or, more probably, Chief Justice Rehnquist, had a hand in crafting some of this language.

Response

Actually, Justice O'Connor and the minority are quite wrong. There is lots to prevent the State from replacing any Motel 6 with a Ritz-Carlton. Justice Stevens noted a way for them to do it, and many States are now considering legislation that would prevent this kind of government taking. The Supreme Court's decision doesn't hold that the Constitution requires this of Government; it just says that, lacking a state statute or local ordinance, government may act in this way. So, what have legislators done at the state level? Why, introduced legislation. Fancy that. Already in Oregon there has been a bill introduced, with a lengthy hearing, on HB 3505. The relevant text is as follows:

SECTION 2: "Except as provided in subsection (2) of this section, a public body as defined in ORS 174.109 may condemn property only if the primary purpose for taking the property is to allow the property to be owned, maintained, occupied and used by the public for public purposes. For the purposes of this subsection, conveyance of condemned property or of an interest in condemned property to a private party is not a public purpose."

Of course it is a far cry from introducing legislation to geting it passed, with the language that everyone wants. And there is no assurance that such legislation will pass in Oregon or any other state, though several states already have language to this effect in their constitutions or statutes. But people aren't helpless and the Republic isn't going to collapse. Many states will pass laws limiting the scope of the Court's decision. Some won't. And people can pressure their local governments on the issue. Surely citizens aren't supine in this day and age.

Conclusion

In the final analysis, some Motel 6's might actually be replaced by a Ritz-Carlton, but I venture to say that Justice O'Connor would be much more likely to stay in the Ritz than she would have in the Motel 6.

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