It's Still My House

The backlash against Kelo was swift and unmistakable, and it crossed traditional political lines. Internet polls after the decision showed more than 90 percent opposition, and more official polls in individual states show opposition to the decision or desire for legal reform running anywhere from 67 percent to 93 percent. Political leaders as diverse as Rep. Maxine Waters (D-Calif.) and Sen. John Cornyn (R-Texas) united in opposition to the ruling.

Politicians quickly responded to voters. As of Dec. 14, four states have enacted legislation directed at least in part at the Kelo decision, bills have been introduced in 19 more states, and five of those have passed at least one house. Legislators in another nine states have said they will introduce legislation, and citizen initiatives are proceeding in at least two states. Next year more states will surely pass reform bills.

In Michigan, the legislature took the additional step of approving a constitutional amendment that would ban the use of eminent domain for economic development. The amendment, which still needs voter approval, also would require that for any taking of “blighted” property, the government must show by clear and convincing evidence that a particular property was blighted.

Meanwhile, the U.S. House of Representatives has passed legislation removing federal funding for the use of eminent domain to take property for commercial development. The Senate will take up the issue early next year.

Thus, while New London and the New London Development Corp. (NLDC) — the private entity to which the city delegated its eminent domain power — won their case at the Supreme Court, that “victory” will likely result in the demise of eminent domain as it has been practiced by cities for years.

And New London and the NLDC can’t even take the particular properties they were seeking. When the NLDC issued eviction notices after the Supreme Court decision, the governor of Connecticut ordered them to be rescinded. Susette Kelo and her neighbors are still living in their homes, and they don’t plan on moving.

Lesson No. 2: Local government officials and planners are wildly out of step with the views of ordinary citizens.

The message from the country has come through loud and clear, but municipal officials and planners still aren’t hearing it. Their initial reaction was one of surprise — after all, these takings happened all the time. What was the big deal?

When it became clear that many people did think that condemning homes and businesses for private development was a very big deal, officials switched their tactics. Now they are focusing on elaborate bureaucratic processes, with “public participation” and lots of studies so that when they use eminent domain, it will stand up in court. Or, as one lawyer put it, “do it like New London did.”

(And, indeed, if cities want to win in federal court, they should do their development projects like New London — with a “plan” and some procedural hoops.)

But if they don’t want to spend five years in litigation, defending against political protest while the state and possibly national media circle, they might want to try another approach. There are ways to stimulate economic growth without taking people’s homes.

Lawyers advising America’s cities and towns should remember the lesson of the Kelo decision: Winning in court isn’t everything.