Court Goes ''Clueless'': Now ''Public Use'' Means Whatever!

Los Angeles Daily Journal

Nearly a decade ago a commentary in Time magazine sarcastically concluded that “eminent domain” is “a legal term meaning ‘we can do anything we want.’” (Steve Lopez, “In the Name of Her Father,” Time, July 14, 1997, p. 4.) The U.S. Supreme Court recently confirmed the accuracy of that ironic comment in Kelo v. City of New London, 2005 DJDAR 2475.

Kelo revolved around the long fight by residents of a working-class neighborhood in New London, Connecticut to prevent the city from forcing them to sell their homes so the city could reconvey them for private redevelopment that would hopefully “upgrade” the neighborhood, create additional jobs, and enrich the municipal fisc.

Editorial reaction seems lopsided. The New York Times (expectedly) waxed rhapsodic, calling the decision a “welcome vindication” of municipal power, although it had to concede (in the name of journalistic accuracy) that the Times itself “benefited from eminent domain in clearing the land for the new building it is constructing . . . .” (Editorial, “The Limits of Property Rights,” The New York Times, June 24, 2005.)

Others have not been so charitable. The Wall Street Journal, for example, said the Court had legitimized a “government land grab” and created a situation in which “there are effectively no limits on the predations of local governments against private property.” (Editorial, “Kennedy’s Vast Domain,” The Wall Street Journal, June 24, 2005.)

Similar concern was expressed in editorials from the usually liberal northeast (“Property Grab,” The Boston Globe, June 25, 2005; “The Little People Get Hit,” Providence Journal, June 24, 2005; “Takings Advantage,” Bangor Daily News, June 24, 2005) through the nation’s heartland (“Court Cripples Property Rights,” Cincinnati Enquirer, June 24, 2005; “Court Puts Our Property In Jeopardy,” Bowling Green Daily News, June 26, 2005; “High Court Ruling Steamrolls Rights of the Little Guy,” Chicago Tribune, June 24, 2005) and into the west (“Stealing Home,” Houston Chronicle, June 25, 2005; “Dark Days Ahead For Property Owners,” Rocky Mountain News, June 24, 2005; “High Court Went Too Far in Property Case,” Tucson Citizen, June 27, 2005).

What happened? How did the so-called “progressive” group of Supreme Court Justices (augmented by Justice Kennedy’s swing vote) manage to come up with what one editorial called “not only one of the most unpopular court decisions in memory but one of the worst, as well” (“The Court Errs Badly,” The Huntsville [Alabama] Times, June 25, 2005)?

Simply put, the Court’s majority (led by Justice Stevens) opted for extreme deference to local government decision making, refusing to “second guess” the city’s determination that the way out of its general economic stagnation was to convert these otherwise inoffensive homes that produced little in the way of taxes into a “planned” commercial/office development that would yield “more,” and to compel the owners to sell if they would not do so voluntarily. (The fact that the city really had no concrete plan for these particular properties at this time was of no moment to the Court.)

When cases get down to dealing with bedrock psychological issues of the “my home is my castle” variety, you can take the “hundred years of precedent” cited by the majority and forget it. It won’t wash with a lot of people – particularly in a case like Kelo, where one of the property owners was an 87-year-old woman who was still living (now with her husband of 60 years) in the house in which she was born. Would you stand by and watch your grandmother thrown out into the street?

Besides, that “hundred years of precedent” isn’t as persuasive as it sounds. Most of the early cases related to condemnations for “private” uses that were actually more in the nature of public utilities. They involved either railroads (which need to be laid out in reasonably straight paths in order to provide any service to the traveling public) or mills for grinding wheat (which needed to be located adjacent to sources of water power and actually provided a public service).

Aside from those, there were the two major cases relied on by the majority, both of which were distinguishable as strange ducks on the factual fringe whose results were seen as necessary but whose rationales needn’t be expanded: Berman v. Parker, 348 U.S. 26 (1954) and Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984). Both holdings could have been upheld, while still striking down the New London plan.

Berman involved one of the country’s first slum clearance plans – and it dealt with an awful Washington, D.C. slum that was badly in need of reclamation. The area was disease-ridden, crime-ridden, and possessed every other negative urban quality one could catalog. The Court concluded that eliminating that environment was a public use – a stretch, but not an unreasonable reaction in light of the generally conceded fact that absent clearing the entire neighborhood for redevelopment, nothing positive would happen.

Midkiff was even more marginal as a matter of national constitutional jurisprudence. It concerned Hawaii’s unique system of land ownership. Contrary to the practice in the rest of the country, most of the fee simple title that wasn’t owned by government agencies was owned by a handful of private entities. Although residential neighborhoods looked like any others, the difference was this: the homeowners owned the homes, but they were permitted only to lease the land beneath.

The Hawaii Legislature decided that, upon request by a requisite number of homeowners, local government could condemn fee title and transfer it to the individuals. The Supreme Court upheld the law, concluding that the condemnation was for the “public use” of ending land ownership oligopoly. Another stretch, but a situation that would not likely recur. The problem for the future lay in the expansive language employed in the opinion.

The majority in Kelo decided to build on Berman and Midkiff, essentially concluding that if those facts justified condemnation for “public use,” then virtually any facts would fit the bill. Here, the majority was convinced that a municipality in dire economic straits ought to be able to engage in substantive land use planning that would allow development for different uses that would be “better” for the community as a whole, even if there was nothing wrong with the property being condemned.

The opinion cautions that condemnations that are obviously intended simply to provide benefit to some favored private party, so that the public benefit is incidental, should be subjected to scrutiny. Justice Kennedy’s separate concurring opinion amplified on this same theme. The problem, as pointed out in the dissents written by Justices O’Connor and Thomas, is that neither Justice Stevens nor Justice Kennedy explained how such scrutiny would take place and how that sort of approved “second guessing” could be constitutionally differentiated from the prohibited “second guessing” they outlawed here. (Or, indeed, how the disapproved “second guessing” differs from ordinary judicial review of constitutionality.)

Justice Thomas’separate dissent would have had the Court forthrightly confront the “hundred years of precedent” and overrule it. His fundamental point was that the Constitutional phrase “public use” should actually involve real “public use,” not the more generalized “public purpose” into which the majority allowed it to be morphed.

Justice O’Connor’s opinion (signed by all four dissenters) had two essential arguments. First, Berman and Midkiff should be restricted to their facts. So viewed, this case could be isolated because there was no blight in this part of town, as there had been in Berman. In cases of redevelopment, the dissenters would demand facts like Berman before they would allow the case to proceed. Justice O’Connor was also concerned that the words she had authored for the Court in Midkiff had been overly expansive, “errant,” not accurate presentations of the underlying precepts, and misused in Kelo.

Second, the idea of wholesale elimination of any concept that the property itself caused the need for condemnation was anathema. Pure “economic” condemnation, i.e., condemnation merely to enable someone else to make a “better” use of the property than the current owner, would never be allowed. The dissenters condemned the thought that a Motel 6 could forcibly be replaced with a Ritz-Carlton or a farm with a factory. Even a commentator who applauded the decision described it as holding that “yuppification is a valid public purpose.” (Michael Kinsley, “GOP Judicial Activism Takes a Hit,” Los Angeles Times, June 26, 2005.) Faint praise.

The local deference lauded by the Court has more than one edge. (It is also interesting to compare the deference indulged in Kelo with the opposite conclusion reached recently in Gonzales v. Raich, __ U.S. __ [2005], denying California the deference to chart its own course on medical marijuana.) The majority clearly concluded that states were free, either through judicial interpretations of their own “public use” restrictions or through legislatively imposed restrictions, to rein in their own municipalities.

Thus, the immediate impact in California will probably not be large. As the Court itself noted, California’s statutes do not allow the kind of open-ended economic condemnation as Connecticut’s. The courts here have struck down condemnations that did not deal with truly blighted urban property. (E.g., Friends of Mammoth v. Town of Mammoth Lakes, 82 Cal.App.4th 511 [2000]; 99 Cents Only Stores v. Lancaster Redev. Agency, 237 F. Supp. 2d 1123 [C.D. Cal. 2001].)

Other states have taken note. Florida’s Governor and its legislative leaders have already called for action. (Carrie Johnson, “Property Ruling Appalls Officials,” St. Petersburg Times, June 25, 2005.) Similar rumblings have been heard elsewhere. (E.g., Deborah Kolben and Corky Siemaszko, “Home’s Up For Grabs,” New York Daily News, June 23, 2005; Editorial, “Defining ‘Public Use’ Until it is Meaningless,” The Republican [Springfield, Mass.], June 25, 2005; Editorial, “Error in Judgment,” Investor’s Business Daily, June 27, 2005.) The blogosphere notes immediate calls for legislative reform in Indiana and Virginia.

The U.S. Supreme Court has spoken, albeit in a strange tongue. It has apparently adopted our youngest generation’s concept of “whatever” to answer the question “What is a public use?” Whether that stands the test of time – or even the test of state law amid the outcries of unhappy citizens – will remain an open question for a while.

This article was originally published in the June 30, 2005 issue of the Los Angeles Daily Journal.