FEATURE ARTICLE, AUGUST 2005

A NEW FIFE AND DRUM
The recent Supreme Court ruling on eminent domain demands attention and action from those who value private property rights.
Andrew Brigham

Brigham

The recently announced United States Supreme Court opinion in Kelo v. City of New London1 likely will change this law of political physics. In a 5-4 decision, the majority found that Susette Kelo’s home could be taken under the power of eminent domain so that pharmaceutical giant Pfizer could build a new research facility. Home is not your castle anymore as far as government is concerned; cash is king.

For those who founded this nation, property was sacred. The virtue of private ownership was its division of power. It provided individuals their own piece of sovereignty. It gave equal leverage between those governed and those who govern in the formation of social contract.

John Locke, whose philosophy undergird the U.S. Constitution, explained how the consent of those governed is predicated on constraints placed on government’s exercise of power.2  To be secure in their persons, he considered that people need to be secure in their property. Locke’s idea was that government is instituted to protect property.

Once it was government itself that called out improprieties of real estate development; now, government is the “greedy developer.” Eminent domain, long ago reserved as a sovereign power to accomplish public purpose, has become privatized so as to place the power in the back pocket of local politicians and their chosen entrepreneurs for private gain. Few dispute the notion of government exercising its power of eminent domain when the construction of a road, school or some other public project is at stake. Now, if a person’s home or business is found to be a limitation on the expanded tax base, it may be taken to make way for the bigger, better and more beautiful. Imagine, like Susette Kelo, your private property taken for a new pharmaceutical plant, shopping center or oceanside resort hotel.

The Kelo case shows just how far American jurisprudence has lost her way as if the conscience of the judiciary slowly is being numbed. Constitutional principles seem to go unrecognized under salves of what judges term “legislative deference” or “a presumption of correctness” favoring the out-of-court power politics of local government’s decision-making. But how is this possible?

Fifty years ago, local governments came to court asking that the judicial branch allow an exception to the “Public Use” doctrine. The exception, it was contended, was warranted to solve the problem of slum or blight in urban areas. While private property was taken from one private citizen and given to another, such redevelopment occurred in neighborhoods where government assistance was needed to turn the menace of blight around. The focus of such redevelopment was centered on improving the living conditions of those who resided in crime and disease-ridden areas, and to revitalize those urban core areas left abandoned by free enterprise.

Today, local politicians are in favor of pursuing the visions of politically favored corporations or developers instead of protecting the homeowners and small-business owners who voted them into office. The lines between public and private have become blurred. Most states have redevelopment statutes that allow the taking only after a designation blight by local government. With greater frequency, state and local governments have sought to stretch the definition of blight to such a vague standard that any subdivision or business district with “inadequate street layout,” “diverse ownership” or “faulty lots” meets the dubious definition. Some courts have seen through the charade by finding that a particular definition of blight, both on its face or as applied, is too vague. Other courts have also denied takings as unconstitutional when finding that private gain predominates over an incidental public benefit. As some courts note, the “tail cannot wag the dog.”3

Recently, however, some states have implemented statutes that do not require a showing of blight, but allow instead a government to take private property in the name of economic development alone. This was the situation presented in Kelo. The Connecticut statute in Kelo allowed a taking of private property solely on the basis of economic development, not blight. It was thought by many that Kelo would be an easy call for the U.S. Supreme Court to deny the taking where blight was not used as a pretext; those who did, thought wrong.

In Kelo, Justice Stevens’ majority opinion finds promoting economic development all by itself is enough to justify a taking of private property. Thus, under its interpretation of the 5th Amendment to the U.S. Constitution, the Supreme Court finds it is not an open question for the federal courts to “second-guess” local government’s decision to take private property. This, of course, means that federal courts are more likely not to give takings challenges even a “first look” to inquire if the legislative or executive functions of government have overstepped their bounds.

This new and more devastating brand of “legislative deference” requires that government only show an increase in the tax base or “plan” for economic rejuvenation before taking someone’s private property. The opinion rejected Susette Kelo’s arguments that government should, at the very least, demonstrate with reasonable certainty that any such plan has a chance of success or provide more than an incidental public benefit. For the present, Kelo removes any expectation that the Supreme Court will invoke a federal baseline for takings involving purely economic development. Instead, it is now for states to consider their own constitutional or statutory limits to provide some parameters to a seemingly boundless power of eminent domain.

Kelo’s two dissenting opinions, by contrast, hearken back to a more strict understanding of constitutional limitation. Justice O’Connor’s dissent admitted to “an abdication of our responsibility” in regard to the Supreme Court’s role of providing a check and balance when interpreting the U.S. Constitution regarding a civil right. Justice Thomas’ dissent observed the practical implications to those left unprotected. He noted that so-called “urban renewal” programs of today applied most to the least politically powerful, and least economically privileged, in our communities.

It was the tyranny of King George to which the American Revolution responded. It is Kelo that shortens the distance to a new form of tyranny. Under Kelo, it is not the marketplace that determines who may benefit from investment-backed expectations, but local government. Where, in this instance, the disenfranchisement of constitutional protections is furthered by judicial restraint, the dispute transforms from a legal to political issue. Everyday Americans are taking notice. It is from this larger vantage point that Kelo can be seen in its likely social, economic and political context.

Because private property is neither the sole creation of liberal or conservative thought, we see political leaders from both sides of the aisle calling for constitutional amendment or statutory reform. The issue is less about party affiliation, and more about accountability in government regardless of which party is in power. It is now incumbent on those who value private property rights to stand up, be heard, and seek redress in their state legislatures and state courts. It is time for all, not just those immediately affected, to gather up a new fife and drum.

Andrew Brigham is a partner of the law firm Brigham Moore LLP with offices in Miami, Sarasota, Jacksonville, St. Petersburg and Palm Beach, Florida. He is among a third generation of lawyers who devote their entire practice to representing owners in both eminent domain and property rights cases.

1 Kelo v. City of New London, Connecticut, 2005 LEXIS 5011 (2005).

2 See, Chapter 9, “Of the Ends of Political Society and Government,” §123 - §131, “An essay concerning the true, original extent and end of civil Government,” John Locke, (1690).

3 Baycol, Inc. v. Downtown Development Authority of the City of Fort Lauderdale, 315 So.2d 451 (Fla. 1975); see also, Rukab v. City of Jacksonville Beach, 811 So.2d 727 (Fla. 1st DCA 2002).

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