KELO
v.
CITY OF
125
No. 04-108
certiorari to
the Supreme Court of
268
Argued
February 28, 2006--Decided March 17, 2006
Justice Rainwater and Justice Stiles filed separate opinions
which each joined. Chief Justice Hanson
dissented.
Justice
Stiles which Justice Rainwater joins.
Justice
Rainwater in which Justice Stiles joins
INTRODUCTION: QUESTIONS PRESENTED
The questions at issue in this case are not only of lasting importance to the government and its ability to provide for the common good but also to the American people, individual property owners across the nation, many of whom regard their home as their single most valuable, important, and meaningful asset. Though directly stated in no law, there is a common understanding (one, it could be said, possibly fostered by WWII-era legislation such as the Montgomery G.I. Bill that financially encourages home ownership) that Americans who can afford their own home have more of a right to keep their home than they do to other kinds of property. Of all the possible property a person may own, the only laws allowing for protection of property with deadly force that have passed the tests of the courts apply solely to citizens’ homes (Colorado18-1-704.5, C.R.S. 1997; Sec. 782.02, Florida Statutes 1997).
In addition to the culturally implied and legislatively professed “distinctiveness” regarding individual property rights when the property in question is one’s home, this case also emphasizes the problem of weighing the rights of individuals against the conflicting rights of the community. Our government’s philosophy of constitutional democracy allows for the will of the majority of citizens to decide on issues facing the community. To prevent an unjust tyranny of this majority, there are protected rights of every individual, including those in the minority on a decision, which are not to be infringed by any community decision. The question of balance between the rights of individuals and the rights of the community when they are in clash is always a difficult one, rarely more so than when something as foundational as an individual’s right to property, especially property as important as one’s home, is in contention.
Finally, this decision will have a great impact on the future of eminent domain, the narrowly tailored right of the government to take private property for public use given just compensation (the ‘Takings Clause’ as stated in the Fifth Amendment to the U.S Constitution). This case blurs the line between “private” and “public” goods further than any other that has reached this Court, and that makes it of particular importance that future conflicts of this nature be wisely anticipated by this decision and precedent it grants.
I: THE HOME AS “SPECIAL” PROPERTY
The first question, that of a possible individual’s “right” to their home, I find in favor of the petitioners. While not stated outright in the Constitution or other federal legislation, there is an implied understanding that the private home is an individual’s or family’s greatest asset, in terms of both financial and sentimental value. Much like the implied right to privacy, the implied “special-ness” of the home within the right to property is clear and unquestionably real. This gives added weight to the home in particular within the right to private property and therefore calls for strict scrutiny to be applied to the respondents who seek to forcibly alter the petitioners’ property against their will.
II: DEFINING PUBLIC USE
Put simply, the
City of
The respondents
claim that Berman v. Parker, 348
The respondents’ arguments fair no better in Midkiff. This case concerned oligopoly in the leasing of residential property. Neither of these issues are present in the case at hand: each of the petitioners maintains their property as their own private residence; there is no leasing oligopoly nor any trade concerns whatsoever that represent a compelling state interest in taking private property for “public use” that includes transfer to another private party. As stated in the decision, “regulating oligopoly and the evils associated with it is a classic exercise of a State's police powers…and to reduce such evils is a rational exercise of the eminent domain power.”
The trading of private property from one party to another, when compelled by the government and against the will of the original owner, must be for a clear public gain that is in concurrence with the responsibilities of government. In accordance with section I of this decision, this stipulation cannot be more emphasized than in a case involving a private citizen’s home.
III: IMPLICATIONS OF PRECEDENT
In effect ruling on
behalf of the respondents would eliminate any distinction between private and
public use of property, thereby effectively deleting the words “for public use”
from the Takings Clause of the Fifth Amendment.
To justify
If this were allowed to stand, any private property could be taken for the benefit of another private party. This would not happen at random however. Worse than that, the beneficiaries of a ruling in favor of the respondents are likely to be those citizens with disproportionate influence and power in the political process, such as large corporations and development firms. Losses stemming from this decision would fall disproportionately on poor communities which are not only less likely to put their lands to the highest and best public use, but are also the least politically powerful. While there is case precedent, as cited by counsel for the respondents, showing that benefits to the community at large stemming from private development can count as “public use,” these precedents have strict requirements (which are made all the more so due to the special status of the private home) and it has been shown that none of these specific circumstances fit the case at hand. This case goes a step beyond the precedents of Berman, Midkiff, and the like. Here the line must be drawn so that there is some precedent as to how far the public/private line may be blurred, and in which situations where that line should be hardest to cross (the private family home). Given the facts of the case, the special status of the family home, and the desperate need for some limiting precedent in cases of eminent domain, I rule in concurrence with Justice Rainwater in favor of the appellants and against the City of New London, CT.
Today, the City of
The Fifth Amendment
of the Constitution states “nor shall private property be taken for public use,
without just compensation.” From this
clause, it is clear that the government has the power to “demand for their
exercise the acquisition of lands in all the States. These are needed for
forts, armories, and arsenals, for navy-yards and light-houses, for
custom-houses, post-offices, and court-houses, and for other public uses.” Kohl v.
US, 91
This
Court has traditionally given a great deal of deference to the
legislature. As a result, our role “in
determining whether that power is being exercised for a public purpose is an
extremely narrow one.” Berman v. Parker,
348
It
has generally been found that the government cannot “tak[e] property from A.
and giv[e] it to B.” Calder v. Bull, 3 Dall. 386, 388
(1798). However, this Court has also
established that the government may transfer property from one private party to
another if it is to use that property for a public use, such as a railroad. National
Railroad Passenger Corporation v. Boston & Maine Corp., 503
In
Berman, the
In
Midkiff, the “State and Federal
Governments owned almost 49% of the State's land, another 47% was in the hands
of only 72 private landowners.” It was determined that this disproportionate
ownership of land created an oligopoly in which market prices were inflated and
harming the public welfare. The homes
seized by the City of
In the present
case,
We
draw a distinction between the Berman/Midkiff cases and the one today because
if we do not, the restriction of eminent domain to “public use” means nothing
at all. The supposed “public benefits”
that will be accrued with the installation of the Pfizer research facility are
the creation of jobs, increased tax revenue and aesthetic improvement of the
community. The difficulty with this
definition of public use is that any private business could be said to do those
things. A legislature could reasonably
determine that the installation of a McDonald’s fast food restaurant would
create jobs, increase tax revenue and – although it seems unlikely – determine
that it would aesthetically improve the community. Further, in this scenario, the McDonalds
would actually be more open to the public than would the Pfizer research
facility. Yet this Court has firmly
established that 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."
This
Court gives a great deal of respect and trust to the legislature to do what is right.
In determining what is good for the community, “we do not lightly second-guess
such legislative judgments, particularly where the judgments are based in part
on empirical determinations.” Westside
Community Bd. Of Ed. V. Mergens, 496
I respectfully dissent.
I agree with the majority that individual home ownership is
important and should be given deference and respect by courts. However,
ensuring good for the greater public can be more important. The Berman and
Midikiff decisions illustrated situations in which this Court placed the public
good over homeowners. The majority is correct that Berman and Midikiff are not
the same as the case presented here.
I now turn to two
recent decisions by Justice Stevens and Kennedy. Justice Stevens provides a
clear rationale for
Justice Stevens (syllabus of decision)
http://www.law.cornell.edu/supct/html/04-108.ZS.html
(a) Though
the city could not take petitioners’ land simply to confer a private benefit on
a particular private party, see, e.g., Midkiff, 467
(b) The city’s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue. As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan’s comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court’s review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment. P. 13.
(c) Petitioners’
proposal that the Court adopt a new bright-line rule that economic development
does not qualify as a public use is supported by neither precedent nor logic.
Promoting economic development is a traditional and long accepted governmental
function, and there is no principled way of distinguishing it from the other
public purposes the Court has recognized. See, e.g., Berman, 348
Justice Kennedy
http://www.law.cornell.edu/supct/html/04-108.ZC.html
I join the opinion for the Court and add these further observations.
This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U.S. Const., Amdt. 5., as long as it is “rationally related to a conceivable public purpose.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241 (1984); see also Berman v. Parker, 348 U.S. 26 (1954). This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses, see, e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 313—314 (1993); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955). The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.
A court
applying rational-basis review under the Public Use Clause should strike down a
taking that, by a clear showing, is intended to favor a particular private
party, with only incidental or pretextual public benefits, just as a court
applying rational-basis review under the Equal Protection Clause must strike
down a government classification that is clearly intended to injure a
particular class of private parties, with only incidental or pretextual public
justifications. See
A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose. Here, the trial court conducted a careful and extensive inquiry into “whether, in fact, the development plan is of primary benefit to … the developer [i.e., Corcoran Jennison], and private businesses which may eventually locate in the plan area [e.g., Pfizer], and in that regard, only of incidental benefit to the city.” 2 App. to Pet. for Cert. 261. The trial court considered testimony from government officials and corporate officers; id., at 266—271; documentary evidence of communications between these parties, ibid.; respondents’ awareness of New London’s depressed economic condition and evidence corroborating the validity of this concern, id., at 272—273, 278—279; the substantial commitment of public funds by the State to the development project before most of the private beneficiaries were known, id., at 276; evidence that respondents reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand, id., at 273, 278; and the fact that the other private beneficiaries of the project are still unknown because the office space proposed to be built has not yet been rented, id., at 278.
The trial
court concluded, based on these findings, that benefiting Pfizer was not “the
primary motivation or effect of this development plan”; instead, “the primary
motivation for [respondents] was to take advantage of Pfizer’s presence.”
Petitioners and their amici argue that any taking justified by the promotion of economic development must be treated by the courts as per se invalid, or at least presumptively invalid. Petitioners overstate the need for such a rule, however, by making the incorrect assumption that review under Berman and Midkiff imposes no meaningful judicial limits on the government’s power to condemn any property it likes. A broad per se rule or a strong presumption of invalidity, furthermore, would prohibit a large number of government takings that have the purpose and expected effect of conferring substantial benefits on the public at large and so do not offend the Public Use Clause.
My agreement with the Court that a presumption of invalidity is not warranted for economic development takings in general, or for the particular takings at issue in this case, does not foreclose the possibility that a more stringent standard of review than that announced in Berman and Midkiff might be appropriate for a more narrowly drawn category of takings. There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause. Cf. Eastern Enterprises v. Apfel, 524 U.S. 498, 549—550 (1998) (Kennedy, J., concurring in judgment and dissenting in part) (heightened scrutiny for retroactive legislation under the Due Process Clause). This demanding level of scrutiny, however, is not required simply because the purpose of the taking is economic development.
This is not the occasion for conjecture as to what sort of cases might justify a more demanding standard, but it is appropriate to underscore aspects of the instant case that convince me no departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimus. The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city’s purposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case.