WASHINGTON -
In 24 states, legislation has either been introduced or may be filed shortly to impose restrictions on the use of eminent domain to benefit private development, while 12 states have already imposed curbs on taking private land for private development, including six where lawmakers are seeking to make those curbs tougher. However, it is not clear how many of the proposals will become law.
"Never before has there been this kind of universal disgust with a Supreme Court decision," said Steven Anderson, a lawyer who runs the Castle Coalition, an advocacy arm of the libertarian public-interest law firm, the Institute for Justice. "There aren't very many people other than government planners who favor this decision," said Anderson, whose group has launched a $3 million nationwide "Hands Off My Home" campaign.
Anderson was referring to the high court's 5-4 ruling on June 23 in Kelo v. New London, Conn. that New London may take non-blighted private land in an area of the city deemed economically distressed in order to hand the property over for private development. The state's Supreme Court ruled 4-3 last year that the promise of additional revenue justified the seizure. The Institute represented homeowner Susette Kelo in the case.
Both Republican and Democratic lawmakers at the federal and state level nationwide have strongly denounced the ruling in the Kelo case, and sources generally agree that the popular backlash against the ruling has been politically significant. Opinion polls consistently show strong public disapproval of the ruling.
Tim Lay, a lawyer for the National League of Cities, which hailed the ruling, acknowledged that revolts against the decision could have ramifications for local governments.
"Local voter opposition may lead city council members to be more hesitant to approve certain condemnation projects than they might previously have been, but that's OK ... it's nothing more than the democratic process at work," said Lay, who works for the local law firm Spiegel & McDiarmid.
Despite that opposition, redevelopment across the nation will not grind to a halt, Lay said. City councils will have to be "more careful in deciding when and where to use their condemnation power for redevelopment, and they'll probably have to do a better job of explaining to their constituents the benefits of the projects that they do decide to go forward with," Lay said.
Sheila Crowley, president of the National Low Income Housing Coalition, said the widespread negative reaction to the decision has brought the poles of the political spectrum together. "My personal view is the decision is ridiculous," Crowley said. "Putting up shiny new expensive buildings isn't always the best thing."
Susan Parnas Frederick, an attorney and lobbyist for the National Conference of State Legislatures, offered some perspective on the controversy, saying the groundswell of activity in response to federal action is not unprecedented. For example, since President Bush turned medical malpractice liability reform into a major political issue, lawmakers in 48 states have introduced 400 bills so far this year aimed at reining in malpractice awards, she said.
But lawyer John Echeverria, who wrote the American Planning Association's amicus curiae brief in the Kelo case, said he found the reaction to the decision "surprising." Kelo was a "straightforward application of long-standing law to the case," said Echeverria, executive director of the Environmental Law and Policy Institute at Georgetown University Law Center.
"It certainly did not expand the government's power of eminent domain," he said. "The hysteria largely generated by the Institute for Justice seems overblown and paranoid."
The Castle Coalition's Anderson disagreed. He said there's a reason Justice William Paterson called eminent domain the "despotic power" in the 1795 Supreme Court decision, Vanhorne's Lessee v. Dorrance. "Other than killing you or jailing you, there is nothing a government can do to you that is worse than taking your property," Anderson said.
The Kelo case had been of intense interest to localities that want to condemn land to clear the way for redevelopment projects that promise, but do not guarantee, jobs and increased tax revenue. Credit agency analysts were reluctant to comment for this article, but have previously acknowledged that municipal debt is often used in redevelopment financing packages, and so any narrowing by states or localities of the criteria used in eminent domain cases could have an impact on the municipal market.
STATE ACTIONS
In writing for the court's majority June 23, Justice John Paul Stevens acknowledged that "promoting economic development is a traditional and long accepted function of government." Stevens also suggested that if state lawmakers wanted to rein in eminent domain powers, they were free to do so.
Lawmakers in at least 24 states have apparently accepted Stevens' suggestion and are now considering proposals aimed at curbing condemnation powers.
On Aug. 3, Alabama became the first state to enact a law curbing eminent domain following the Supreme Court ruling. On that day, Republican Gov. Bob Riley signed a law prohibiting the state and local governments from condemning private property in non-blighted areas for the purpose of retail, commercial, industrial, office, or residential development.
Riley specifically denounced the Kelo decision, calling it "misguided" and a "threat to all property owners." The ruling is "a reminder of the awesome power that activist judges have, and unfortunately use, to rewrite our Constitution," Riley said.
California lawmakers have proposed a state constitutional amendment to curb the use of eminent domain. Two senators, Tom McClintock, R-Thousand Oaks, and Dean Florez, D-Shafter, back a proposed amendment that would force the government either to own the property it condemns or ensure the public the right to use it.
Several Republican lawmakers in the Virginia House of Delegates said they plan to introduce legislation to curb local governments' use of eminent domain powers for economic development projects. "If we don't protect private property, citizens are no different than serfs or slaves," said Del. Robert G. Marshall, R-Prince William. A ruling by five justices does not "sanitize the odor of theft," he said.
Lawmakers in Connecticut have advised local governments there to hold off on any planned condemnations until they complete an ongoing review of the state's eminent domain criteria. "We need to take a good look at how often and under what circumstances eminent domain is being used in Connecticut and determine if there is a way to improve state law on the issue," Democratic Senate president pro tempore Donald E. Williams Jr. said.
Gov. M. Jodi Rell, a Republican, expressed support for the review. "This issue is the 21st century equivalent of the Boston Tea Party: the government taking away the rights and liberties of property owners without giving them a voice," she said. "But this time it is not a monarch wearing robes in England we are fighting - it is five robed justices at the Supreme Court in Washington."
In Texas, several measures have been introduced, including proposed amendments to the state constitution. A few days after the Supreme Court decision, Sen. Kyle Janek, R-Houston, filed a proposed constitutional amendment to curb eminent domain powers. "The property rights travesty that is taking place in New London, Conn., can never be allowed to take place in Texas," Janek said.
In Pennsylvania, Rep. Thomas F. Yewcic, D-Johnstown, introduced a bill that would bar municipalities from appropriating property in order "to turn it over to a nonpublic interest."
"If the Supreme Court will not give private property owners any protection, the state legislature should," Yewcic said. "We need to take measures to prohibit the courts from emasculating our rights as Americans.".
In the New York Senate, at least three bills are pending that would make it more difficult for localities to condemn for private development. One measure, sponsored by Sen. John A. DeFrancisco, R-Syracuse, would allow eminent domain only for specific public purposes.
"This legislation is essential to protect the rights of every individual who owns property to be able to keep that property irrespective of their economic status or political clout," DeFrancisco said when he unveiled the measure July 22.
Opponents of condemnation for economic redevelopment also won some recent battles before the Kelo ruling was handed down. In March, Utah Gov. Jon Huntsman Jr., a Republican, signed a law that prevents redevelopment agencies from condemning private land to transfer it to another private owner.
A Michigan high court decision last summer seemed to foreshadow an approaching political earthquake. A year ago, District of Columbia Mayor Anthony Williams, who is also president of the NLC, interpreted the Michigan Supreme Court's decision to overturn the trendsetting 1981 case, Poletown Neighborhood Council v. Detroit, as a bad omen. At the time, Williams called the reversal "troubling" and said: "I really fear what the repercussions of [overturning the decision] may be."
The highly influential Poletown ruling, which allowed a Michigan locality to condemn private land and give it to General Motors Corp. for an automobile plant, was a judgment that courts in other states followed, incorporating the reasoning found there in their own rulings.
But in its 2004 ruling in County of Wayne v. Hathcock, the Michigan court did a philosophical about-face and stated that the Poletown decision was an aberration that constituted "a radical departure from fundamental constitutional principles." Overturning Poletown was necessary to "protect the people's property rights," the court wrote. The Hathcock decision blocked the county from condemning private land to make way for the construction of a proposed business park.
Two months after the Hathcock decision, the U.S. Supreme Court agreed to hear the Kelo case.
FEDERAL ACTIONS
In the days and weeks following the Kelo decision, federal lawmakers introduced a slew of bills in Congress to blunt the decision's impact.
On June 27, Sen. John Cornyn, R-Tex., introduced legislation that would bar the use of eminent domain powers by the federal government for private economic development, and bar state and local governments from using such powers to seize land for private economic development projects using federal funds. Cornyn's bill does not prevent taking land for private development if state or local funds are used.
On June 30, the House voted 365 to 33 to approve a nonbinding resolution introduced by Rep. Phil Gingrey, R-Ga., that expressed the chamber's "grave disapproval" of the court ruling. Also that day, the House approved, 231-189, a measure that would bar the use of federal funds "to enforce the judgment" rendered by the court in the Kelo case. Rep. Scott Garrett, R-N.J., offered the provision in the form of an amendment to the spending package that funds federal transportation and housing programs in fiscal 2006.
On July 11, Rep. F. James Sensenbrenner Jr., R-Wis., chairman of the House Judiciary Committee, introduced the proposed "Private Property Rights Protection Act." The measure would bar states and localities from using economic development as a justification for condemning a property if federal funds are used in the project.
Rep. Maxine Waters, D-Calif., July 14 introduced a measure cutting off Community Development Block Grant funds from governments that use the condemnation power for economic development. "The people who get hurt are the many poor people and working people who don't think they can fight City Hall," Waters said.
On July 22, Rep. Henry Bonilla, R-Tex., introduced the proposed "Strengthening the Ownership of Private Property Act," which would bar federal economic development assistance for any state or locality "that uses the power of eminent domain power to obtain property for private commercial development or that fails to pay relocation costs to persons displaced by use of the power of eminent domain for economic development purposes." Since the Kelo decision, Rep. Robert Aderholt, R-Ala., and Rep. Dennis Rehberg, R-Mont., have also introduced bills seeking to limit the reach of eminent domain.
The NLC's Lay suggested he's not worried about pending federal legislation. "I find the efforts on the Hill ... to limit state and local governments' exercise of eminent domain authority to be constitutionally suspect," he said.
"Most of the Hill folks who support such legislation," Lay said, "are folks that, in almost all other contexts, praise federalism and laud those federal judges and judicial nominees who believe that unelected courts should not 'legislate' but should instead defer to democratically elected legislatures, which, of course, is precisely what the Kelo court did."
