‘Public use’ may enter a new domain

Steve Calandrillo, law professor at the University of Washington, knows secondhand the kind of heat the U.S. Supreme Court majority is taking for its recent decision in the New London, Conn., land condemnation case.

He clerked for Alfred Goodwin, the 9th U.S. Circuit Court of Appeals judge who wrote the decision striking “under God” from the Pledge of Allegiance. Goodwin, flayed by conservatives for making law from the bench, was a Nixon appointee noted for restraint, not activism, Calandrillo says.

For its ruling in the Connecticut case, Kelo v. City of New London, the Supreme Court majority is accused of perverting the Fifth Amendment to the U.S. Constitution, which says “nor shall private property be taken for public use, without just compensation.”

With good reason, says Calandrillo, who criticized the Court in a June 24 letter to the New York Times.

“Granting cities the power to destroy homes so that corporations can erect office buildings is a devastating blow to property rights all over America,” he wrote, adding “It is time that the Supreme Court put teeth back into the ‘public use’ requirement and insisted that government takings occur only when social welfare is served, not private developers’ profits.”

New London was condemning homes to make way for a planned private development intended to exploit economic activity spun off by a nearby $300 million Pfizer Corp. drug research facility. Most homeowners were willing to sell, but among the holdouts was an 87-year-old Wilhelmina Dery, who had never lived anywhere but the home she was born in. What kind of community would put her out, and what kind of court would summon the moving van?

Well, in the case of New London, you have a community already down at the heels economically facing the loss of a submarine base that employs 8,400. At the Supreme Court, the majority was looking at prior decisions going back more than 100 years that had slowly broadened the meaning of “public use.”

Precedent often guides Court deliberations as much as much as a reading of the Constitutions itself. The New London case was not the first that recognized economic development as a public good for which the use of eminent domain — condemnation — was justified. One of the major prior cases cited in the majority opinion written by Associate Justice John Paul Stevens involved a 1906 dispute over an aerial mine bucket line.

“I don’t think the majority was making the law up,” Calandrillo says.

But, as a professor, he adds, “I’m always saying ‘Don’t take the law for granted.’”

Associate Justice Clarence Thomas, in his dissenting opinion, agrees.

“Our cases have strayed from the (eminent domain) Clause’s original meaning, and I would reconsider them,” he wrote, adding elsewhere that the Stevens opinion might have this peculiar effect: “Though citizens are safe from the government in their homes, the homes themselves are not.”

From the regrettably departing Associate Justice Sandra Day O’Connor came the observation that, using the majority’s opinion as a guideline, any transfer of private property to a private developer by means of condemnation might be acceptable if economic growth be considered public use.

“Then the words ‘for public use’ do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.”

She concluded: “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders could not have intended this perverse result.”

How insightful, and how ironic that it was the court’s conservatives who joined her when it should have been the liberals who perceived the potential for the transfer of property from the poor to the wealthy. Ironic, too, that Stevens and the authors of opinions in earlier eminent domain cases did so in deference to the legislative branch. Not much thanks from lawmakers these last few weeks.

As Professor Calandrillo notes, the backlash to the New London rulings has crossed ideological lines. But redrawing the line distinguishing public use from private profit will not be easy.

“How do you go back to square one now that you’ve gone so far down the line?” he wonders.

Fortunately, that’s not a trip Washington will have to make. Calandrillo says the state constitution does not let the eminent domain train far out of the station. “Washington cities would not be able to do what New London did,” he says.

Still, state Sen. Pam Roach, R-Auburn, says more property owner protections are needed, including disclosure by whatever private parties might be the beneficiaries of a condemnation. Roach, whose family is involved in a San Diego condemnation action, says the New London case puts everyone at risk of losing their property.

In Idaho, Deputy Attorney General David High says he has been asked to review laws that control local government eminent domain powers, with the likelihood that redevelopment agencies like one in Boise will come under particular scrutiny.

With governments at every level under increasing pressure to do all they can to foster economic development, would a Wilhelmina Dery stand in the way here?