Eminent domain: The truth behind the spin: Marblehead (MA) Reporter, 7/15/05


By Sean Connolly

Ours is an age of political polarization and shameless media spin. The recent U.S. Supreme Court decision on eminent domain, Connecticut's Kelo case, is a case in point. Of those seething with rabid vitriol in its wake, I'm sure that only a tiny fraction of them - even those in the media - have even read the decision or analyzed it in the context of other takings cases by the U.S. Supreme Court handed down in the last 25 years.

The truth of the matter is this: The high court has been continually expanding the protection of private property rights over the last two decades. In fact, where a governmental action substantially diminishes the value of private property, even where there is no physical taking, the Court has held that a compensable regulatory taking has occurred, for which the property owner must be compensated.

The political spin-masters decry the recent Supreme Court decision as the end of private property rights, hoping that their audiences will not actually review the case for themselves, nor its important preceding decisions. I encourage everyone to do just that, even non-lawyers. There has been an increasing trend toward writing legal opinions in a way the vast majority of people can easily understand, which is a departure from the Olde English ways of jurisprudence whereby only the most learned and elite of society could understand the language of an official legal opinion or document. It is an important development in the democratization of our American legal system.

Having personally devoted substantial time and effort to study and work in this field of takings law, I think it is important for those individuals who do not have this little intellectual niche as one of their specialties in life to have some context within which to understand the recent U. S. Supreme Court eminent domain decision in the Kelo case from Connecticut.

According to the Fifth Amendment to the U.S. Constitution, "No person shall be... deprived of life, liberty or property, without due process of law; nor shall private property by taken for public use, without just compensation." The Fifth Amendment is a set of protections for individuals from the federal government, whereas the Fourteenth Amendment confers those same protections on individuals from abuses by the state governments.

The two important issues in a typical takings case are questions of "public use" and "just compensation." In the recent Supreme Court decision, "just compensation" was not even an issue. Anytime there is a physical taking of private property for public use (with extraordinary exceptions for war, natural disasters, etc.), fair market value must be given to the property owner by the government. This is an important balance because, as many of us are aware, governments at the state and local levels are generally pretty tight on discretionary spending allowances. It is a self-checking measure that the exercise of eminent domain powers must be accompanied by a check to the property owner from the government for the full fair market value of the property being taken for a public purpose. Governments simply do not have the money to injudiciously exercise their powers of eminent domain.

"Just compensation" was not even an issue in this recent case eminent domain case - we all know that just compensation is a requirement for the exercise of eminent domain. Unlike the spin-masters would like to have you believe, the government cannot just come in and take your property and give it to someone else because they will pay more taxes than you. Don't believe the hype!

In the recent Supreme Court case, the issue was not the "just compensation" requirement of the Fifth and Fourteenth Amendments to the U.S. Constitution. It dealt exclusively with the issue of "public use," namely: Is there a public purpose for the government's exercise of its eminent-domain powers? Aside from having studied and worked in the eminent-domain field, I also studied and worked in the public and private sectors as a development planner. Planners, in general, view the recent eminent-domain decision as a victory.

The only reason the high court deemed it be a permissible taking was because it was done pursuant to the local comprehensive plan. The court typically will defer to state and local legislative decisions, such as planning and zoning, unless these local legislative decisions are otherwise held to be unconstitutional.

For over a hundred years, the Supreme Court has held that "public use" includes important public purposes, such as environmental protection and economic development. "Public use" does not necessarily mean that every member of the public could use it as he sees fit, such as a public park - there must, however, be a public purpose and a public benefit. Connecticut's Kelo case was a legitimate exercise of the government's eminent-domain powers because it was implemented pursuant to a comprehensive plan for economic development in that community. It was not a willy-nilly local decision to take someone's house and give it to someone they liked better.

Don't be fooled. Read the opinion for yourself (see the Web site of the U.S. Supreme Court). Do not believe the professional spinners who tell you that this is the end of private property rights and that the government can just take your property and give it to some other private citizen. Such a misstatement of law and fact is untrue and is the irresponsible use of power by those with the great luxury of a modern day bully pulpit.

The seventh page of the Supreme Court opinion reads thusly: "[T]he City would no doubt be forbidden from taking [an owner's] land for the purpose of conferring a private benefit on a particular private party. A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void. Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a 'carefully considered' development plan... the City's development plan was not adopted to benefit a particular class of identifiable individuals."

In the closing pages of its 20-page decision, the Supreme Court states as follows: "In affirming the City's authority to take [the owners'] properties, we do not minimize the hardship that [the use of eminent domain] may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power."

I have no doubt that the media spinners are going to push for continued public misinformation and confusion on this and other U.S. Supreme Court issues in the weeks and months to come. It will be the springboard for mustering public sentiment in favor an increasing appetite for new conservative justice(s) to fill the imminent opening(s) on the U.S. Supreme Court.

Instead of all of the extremist spinning and misinformation on the opposite ends of spectrum, we would all be well served to have an independent, freethinking, centrist, moderate ascend to the high court. We need a new justice who will be similar to Sandra Day O'Connor in important ways: a centrist jurist who thinks for herself and approaches each case with unbiased sound judgment; not a prejudicial judge who seeks to impose his/her biases and flawed political views upon the rest of us.

Marblehead Reporter: http://www2.townonline.com/marblehead

Sean Connolly, a Marblehead resident, is an attorney