1/01/2006

Governments Address Kelo Backlash: The Heartland Institute, 1/1/06

By James Hoare

State and local governments are responding to a groundswell of citizen outrage over the U.S. Supreme Court's June 23, 2005 decision in Kelo v. City of New London. As citizens prove adamant that government should not violate private property rights merely to enhance tax revenue by forcing one private citizen to sell his or her property to another, bills designed to end eminent domain abuse are being authored in legislatures across the nation.

Thirty-eight states have passed legislation restricting eminent domain abuses or are currently in the process of doing so. Support for reform legislation is remarkably bipartisan and evenly distributed throughout the country.


Kansas Represents Bipartisanship
The heartland state of Kansas provides a typical example of the bipartisan support for eminent domain reform. State Senate Majority Leader Derek Schmidt (R-Independence) teamed with Sen. Greta Goodwin (D-Winfield) in September to unveil legislation limiting the circumstances under which government can take one citizen's property and transfer it to another.

"The notion that property ownership is a right doesn't have much meaning if a majority of the city council, county commission, or state legislature can vote to take a person's property and give it to somebody else," explained Schmidt, quoted in Greenwire on September 30.

"I certainly believe that some adjustments are in order to protect private property rights," added Republican colleague Sen. Phil Journey (R-Wichita). "To give land to another person so that person can make money and grow the tax base is outside the purposes of eminent domain and outside the right of government to take private property. There needs to be a very high burden of proof for such actions."

The proposed legislation is equally popular among Democrats. "I just think it's an abuse of power" for government to take property from one private citizen and give it to another, state Rep. Harold Lane (D-Topeka) told the October 7 Topeka Capital-Journal.

Protecting basic property rights "is a people issue," agreed state Rep. Ann Mah (D-Topeka).

Many States Taking Action
While the Kansas proposal waited to be formally addressed by the legislature, other states also took steps to curb eminent domain abuse. The Wisconsin Assembly passed eminent domain legislation on September 27 and forwarded it to the state Senate. The Pennsylvania House passed eminent domain legislation in November. The Michigan Senate passed eminent domain legislation on November 9, and Ohio Gov. Bob Taft (R) on November 16 signed into law a measure preventing local governments from seizing unblighted land for economic development.

"Citizens have been rising up against eminent domain abuse," said Scott Bullock, senior attorney at the Institute for Justice. "It has been an incredible thing to witness.

"With 38 states either limiting eminent domain abuses or currently in the process of doing so, this is a grassroots movement of epic proportions," Bullock said. "There is a real opportunity to change the law, and state legislators from both parties are taking notice."

Local Governments Join Fray
In many cases, local governments decided not to wait for state legislative action and began the process of enacting private property protections of their own. In St. Charles, Missouri, City Councilman John Gieseke introduced a resolution on November 1 to prohibit the city from confiscating private homes for the purpose of giving the land to another private citizen for economic development.

"Can you imagine someone coming to your neighborhood and taking your home to put up a Wal-Mart?" said Gieseke at a November 1 city council meeting, according to the November 6 St. Louis Post-Dispatch.

Local businessman Kevin Rogers, who owns a Dairy Queen, expressed disappointment during the meeting that the resolution applied to homes but did not safeguard other private property.

"I'm strongly opposed to somebody coming and taking away my Dairy Queen to develop it and make some developer rich," Rogers said.

Acknowledging Rogers' concern, Gieseke proposed to expand the resolution. "If the area's not blighted and there's a legitimate business, eminent domain should not be used," Gieseke agreed.

Eminent Domain Abuser Dumped
Local officials who supported broad exercise of eminent domain power did so at their own peril. St. Louis Alderman Thomas Bauer was recalled from office by residents of his blue-collar neighborhood after he played a pivotal role in displacing local residents from their homes for the purpose of building a gas station and convenience store.

Bauer asserted his intention was to improve the neighborhood's economy and convenience with the new business, but his words fell on deaf ears.


More than two dozen documents addressing eminent domain, including the full text of the majority and dissenting opinions in the Supreme Court's Kelo decision, are available through PolicyBot™, The Heartland Institute's free online research database at www.heartland.org. Click on the PolicyBot™ button, and select the topic/subtopic combination Law/Eminent Domain.

The Heartland Institute: www.heartland.org

James Hoare is managing attorney at the Syracuse, New York office of McGivney, Kluger & Gannon: jhoare@mcgivneyandkluger.com