Eminent Domain Do It Yourself?
by John Ryskamp, J.D.
We are fast approaching the moment when meaningless eminent domain "reform"--designed to placate opponents without changing any results--gives way to civil disobedience as sheriffs across the country arrive to kick people out of their houses. What it reveals--more than the willingness of the political system to drag the police into a political situation it failed to anticipate--is the system's larger failure to provide for a sea change in public opinion. Thirty years ago the seizure of Susette Kelo's house through eminent domain would have attracted no attention whatsoever. Today it is a horror story. Something has changed.
As you study eminent domain reform remember that, as Justice Stevens pointed out in Kelo, "economic development" fails to distinguish one type of eminent domain use from another, so legislating preventing eminent domain from being used for that purpose, will not stop a single eminent domain action. Plans to require government to own seized land are also faulty: it is easy to design a plan which provides that government retail title, while real control passes to private parties.
You might be interested in seeing how a few other states—including my own, California—are wording their proposals. It is turning out to be much more complex than legislators thought it would be. You should watch out for language which seems to change eminent domain, but which would not change any outcomes. Alabama just passed an eminent domain reform law, and it was so obviously meaningless that an informal Alabama poll showed 85% of respondents felt it needed to be changed.
The issue seems to turn on three questions:
1. What facts do you want to protect?
2. From what do you want to protect those facts?
3. How much protection do you want to give those facts?
The issue is of particular interest to me, because I am writing a law review article on the Kelo case which will appear in the November 2006, issue of the Stetson Law Review, if not earlier at the Harvard Law Review. A draft of the article is available online:
Ryskamp, John Henry, “Kelo v. New London: Deciding the First Case Under the New Bill of Rights.”
It gives the historical background of the changes you are considering. Susette Kelo contacted me after the loss of the case, asking for alternate legal grounds to save her housing. That is why there is a draft complaint attached to the article. I think that there is probably a Fifth Amendment Due Process Clause right to housing, which is the basis of the suit.
In any event, based on the review I have made of various state proposals it appears that central to all of them is, to put it in “legalese,” whether you are going to raise the level of scrutiny for housing. Housing, as you know, currently enjoys only minimal scrutiny. If states decide, for example, that eminent domain cannot be exercised with respect to housing unless it is narrowly tailored to achieve a compelling government interest, that of course raises the level of scrutiny to strict scrutiny, for housing with respect to eminent domain.
That does not end the inquiry, however. What is happening in Connecticut is that people then ask: Well, if you are going to have strict scrutiny for housing with respect to eminent domain, with respect to what else should housing enjoy strict scrutiny? And even further, what else besides housing should enjoy strict scrutiny with respect to eminent domain?
Frankly, I think people have simply changed their minds about housing. It happens periodically with respect to certain facts. For example, until relatively recently public opinion was not much concerned about gender legal inequality. Then, during the last few decades, and for whatever reason, there has been a sea change. Now public opinion demands gender legal equality. And the law simply had to change in order to incorporate that new demand. It happens.
I think you are confronting a sea change. Forty years ago the Kelo eminent domain action would not have aroused this opposition. It does today. Why? People have simply changed their feelings about housing. Now they want it to have as much individually enforceable protection as protected speech. I think egislatures are just going to have to confront the fact that there has been a sea change in the way housing is regarded.
And I think that change extends to other facts too. For example, there are several cases around the country in which businesses are being seized by eminent domain. Those businesses are their owners’ only source of income. Where maintenance is involved, should eminent domain also be restricted? You’re going to have to confront that, too.
This is why the article I have written discusses five facts for which scrutiny is probably going to be raised. These five facts involve what, for want of a better word, I call “survival.” I think there has been a sea change in regard to public opinion about survival: people now want an absolute individually enforceable right of survival. It sounds extreme, but it’s being worked out step by step, and this challenge to eminent domain is an example of that. For example, I don’t think that advocates of increased housing rights would have thought that the issue would wind up being discussed by property rights groups in the context of eminent domain! But there it is.
I have heard from planners and developers who wonder what effect any legislation will have on their operations. Well, heightened scrutiny for housing will require professionals to plan around that new right. But I also think it will mandate a lot of government activity which will send a lot of business their way. So I don’t think they’ll lose: they’ll just have to do business a different way.
Now to the analysis:
CALIFORNIA
This state’s proposed Constitutional amendment contains two key provisions:
“Private property may be taken or damaged for a stated public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. Private property may not be taken or damaged for private use.”
It appears the authors meant to tighten up “public use” by mandating that it be “stated.” However, any formulation can be developed to satisfy this requirement, without changing the outcome in any eminent domain action. The problem is that no definition of “private use” is provided. In default of that, the courts would be likely to apply the traditional idea: “private”—forbidden—use is eminent domain used in violation of another law or as a result of some criminal violation.
“Private property may be taken by eminent domain only for a stated public use and only upon an independent judicial determination on the evidence that the condemnor has proven that no reasonable alternative exists. Property taken by eminent domain shall be owned and occupied by the condemnor or may be leased only to entities that are regulated by the Public Utilities Commission. All property that is taken by eminent domain shall be used only for the stated public use.”
The eye-opener here is “no reasonable alternative.” Strict scrutiny says that the government action must be narrowly tailored to achieve a compelling government interest. “Narrowly tailored” is usually taken to mean that there is no reasonable alternative. Under this provision, therefore, it would appear that all eminent domain is subject to strict scrutiny. One wonders if the authors realize this, and if so, if they realize the level of opposition likely to develop by governments and private interests which have always used eminent domain under minimal scrutiny. Note that this provision provides strict scrutiny for housing with respect to eminent domain, and so immediately raises the question with respect to housing and other facts, in what other contexts they receive strict scrutiny? In the alternative, what is the likelihood that a pressured court would reconcile “no reasonable alternative” with “public use” to find that “no reasonable alternative” in this proposal, means “rationally related to a legitimate government purpose”—effectively gutting the proposal? Or does this language change the role of the State in the Federal system, making it impossible for the state to legislate for the general welfare? The owner, occupation and leasing provisions seem to be merely more invitations to creative evasion, and not likely to change the outcome of any eminent domain action.
CONNECTICUT
The Connecticut General Assembly decided to conduct its review of eminent domain law through a specially convened Joint Judiciary and Planning and Development Committee, which began hearings on July 28, 2005. There seems to be a split between two provisions:
“Eminent domain shall not be exercised with respect to housing unless it is substantially related to an important government interest”
or
“Eminent domain shall not be exercised with respect to housing unless it is narrowly tailored to achieve a compelling government interest.”
These provisions immediately raised the question, what about eminent domain over a business which provides the income—that is, the maintenance—for its owner? Then is this an appropriate addition:
“Eminent domain shall not be exercised with respect to maintenance unless it is narrowly tailored to achieve a compelling government interest.”
ALABAMA
Signing Alabama’s revision to eminent domain on August 3, 2005, Governor Robert Riley said: “What our new law does is restore the level of protection that existed prior to the Supreme Court's ruling in June,” even though the decision merely ratified previous rulings on eminent domain. The Alabama law purportedly eliminated eminent domain for industrial, commercial, office, retail or residential development, but could be used to construct roads, public buildings and to remove blight; blight included areas which are obsolete, faulty in arrangement or design, or in danger of becoming blighted. As Dana Berliner, an IJ attorney, said of the blight provision: “All of these are ways of saying we'd like to construct something else here that has a different layout.” (The governor replied that he was willing to consider changes.) The apparent exceptions to “economic development” are more problematic than the language about blight. In the case of a concept such as “economic development” which, as Justice Stevens pointed out, does not, in the first place, distinguish a different kind of eminent domain, making “exceptions” to “economic development” merely puts the question, what is the Constitution? We are back to square one; the concept of “exceptions” retards, rather than advances, the inquiry into eminent domain.
John Ryskamp, J.D.
We are fast approaching the moment when meaningless eminent domain "reform"--designed to placate opponents without changing any results--gives way to civil disobedience as sheriffs across the country arrive to kick people out of their houses. What it reveals--more than the willingness of the political system to drag the police into a political situation it failed to anticipate--is the system's larger failure to provide for a sea change in public opinion. Thirty years ago the seizure of Susette Kelo's house through eminent domain would have attracted no attention whatsoever. Today it is a horror story. Something has changed.
As you study eminent domain reform remember that, as Justice Stevens pointed out in Kelo, "economic development" fails to distinguish one type of eminent domain use from another, so legislating preventing eminent domain from being used for that purpose, will not stop a single eminent domain action. Plans to require government to own seized land are also faulty: it is easy to design a plan which provides that government retail title, while real control passes to private parties.
You might be interested in seeing how a few other states—including my own, California—are wording their proposals. It is turning out to be much more complex than legislators thought it would be. You should watch out for language which seems to change eminent domain, but which would not change any outcomes. Alabama just passed an eminent domain reform law, and it was so obviously meaningless that an informal Alabama poll showed 85% of respondents felt it needed to be changed.
The issue seems to turn on three questions:
1. What facts do you want to protect?
2. From what do you want to protect those facts?
3. How much protection do you want to give those facts?
The issue is of particular interest to me, because I am writing a law review article on the Kelo case which will appear in the November 2006, issue of the Stetson Law Review, if not earlier at the Harvard Law Review. A draft of the article is available online:
Ryskamp, John Henry, “Kelo v. New London: Deciding the First Case Under the New Bill of Rights.”
It gives the historical background of the changes you are considering. Susette Kelo contacted me after the loss of the case, asking for alternate legal grounds to save her housing. That is why there is a draft complaint attached to the article. I think that there is probably a Fifth Amendment Due Process Clause right to housing, which is the basis of the suit.
In any event, based on the review I have made of various state proposals it appears that central to all of them is, to put it in “legalese,” whether you are going to raise the level of scrutiny for housing. Housing, as you know, currently enjoys only minimal scrutiny. If states decide, for example, that eminent domain cannot be exercised with respect to housing unless it is narrowly tailored to achieve a compelling government interest, that of course raises the level of scrutiny to strict scrutiny, for housing with respect to eminent domain.
That does not end the inquiry, however. What is happening in Connecticut is that people then ask: Well, if you are going to have strict scrutiny for housing with respect to eminent domain, with respect to what else should housing enjoy strict scrutiny? And even further, what else besides housing should enjoy strict scrutiny with respect to eminent domain?
Frankly, I think people have simply changed their minds about housing. It happens periodically with respect to certain facts. For example, until relatively recently public opinion was not much concerned about gender legal inequality. Then, during the last few decades, and for whatever reason, there has been a sea change. Now public opinion demands gender legal equality. And the law simply had to change in order to incorporate that new demand. It happens.
I think you are confronting a sea change. Forty years ago the Kelo eminent domain action would not have aroused this opposition. It does today. Why? People have simply changed their feelings about housing. Now they want it to have as much individually enforceable protection as protected speech. I think egislatures are just going to have to confront the fact that there has been a sea change in the way housing is regarded.
And I think that change extends to other facts too. For example, there are several cases around the country in which businesses are being seized by eminent domain. Those businesses are their owners’ only source of income. Where maintenance is involved, should eminent domain also be restricted? You’re going to have to confront that, too.
This is why the article I have written discusses five facts for which scrutiny is probably going to be raised. These five facts involve what, for want of a better word, I call “survival.” I think there has been a sea change in regard to public opinion about survival: people now want an absolute individually enforceable right of survival. It sounds extreme, but it’s being worked out step by step, and this challenge to eminent domain is an example of that. For example, I don’t think that advocates of increased housing rights would have thought that the issue would wind up being discussed by property rights groups in the context of eminent domain! But there it is.
I have heard from planners and developers who wonder what effect any legislation will have on their operations. Well, heightened scrutiny for housing will require professionals to plan around that new right. But I also think it will mandate a lot of government activity which will send a lot of business their way. So I don’t think they’ll lose: they’ll just have to do business a different way.
Now to the analysis:
CALIFORNIA
This state’s proposed Constitutional amendment contains two key provisions:
“Private property may be taken or damaged for a stated public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. Private property may not be taken or damaged for private use.”
It appears the authors meant to tighten up “public use” by mandating that it be “stated.” However, any formulation can be developed to satisfy this requirement, without changing the outcome in any eminent domain action. The problem is that no definition of “private use” is provided. In default of that, the courts would be likely to apply the traditional idea: “private”—forbidden—use is eminent domain used in violation of another law or as a result of some criminal violation.
“Private property may be taken by eminent domain only for a stated public use and only upon an independent judicial determination on the evidence that the condemnor has proven that no reasonable alternative exists. Property taken by eminent domain shall be owned and occupied by the condemnor or may be leased only to entities that are regulated by the Public Utilities Commission. All property that is taken by eminent domain shall be used only for the stated public use.”
The eye-opener here is “no reasonable alternative.” Strict scrutiny says that the government action must be narrowly tailored to achieve a compelling government interest. “Narrowly tailored” is usually taken to mean that there is no reasonable alternative. Under this provision, therefore, it would appear that all eminent domain is subject to strict scrutiny. One wonders if the authors realize this, and if so, if they realize the level of opposition likely to develop by governments and private interests which have always used eminent domain under minimal scrutiny. Note that this provision provides strict scrutiny for housing with respect to eminent domain, and so immediately raises the question with respect to housing and other facts, in what other contexts they receive strict scrutiny? In the alternative, what is the likelihood that a pressured court would reconcile “no reasonable alternative” with “public use” to find that “no reasonable alternative” in this proposal, means “rationally related to a legitimate government purpose”—effectively gutting the proposal? Or does this language change the role of the State in the Federal system, making it impossible for the state to legislate for the general welfare? The owner, occupation and leasing provisions seem to be merely more invitations to creative evasion, and not likely to change the outcome of any eminent domain action.
CONNECTICUT
The Connecticut General Assembly decided to conduct its review of eminent domain law through a specially convened Joint Judiciary and Planning and Development Committee, which began hearings on July 28, 2005. There seems to be a split between two provisions:
“Eminent domain shall not be exercised with respect to housing unless it is substantially related to an important government interest”
or
“Eminent domain shall not be exercised with respect to housing unless it is narrowly tailored to achieve a compelling government interest.”
These provisions immediately raised the question, what about eminent domain over a business which provides the income—that is, the maintenance—for its owner? Then is this an appropriate addition:
“Eminent domain shall not be exercised with respect to maintenance unless it is narrowly tailored to achieve a compelling government interest.”
ALABAMA
Signing Alabama’s revision to eminent domain on August 3, 2005, Governor Robert Riley said: “What our new law does is restore the level of protection that existed prior to the Supreme Court's ruling in June,” even though the decision merely ratified previous rulings on eminent domain. The Alabama law purportedly eliminated eminent domain for industrial, commercial, office, retail or residential development, but could be used to construct roads, public buildings and to remove blight; blight included areas which are obsolete, faulty in arrangement or design, or in danger of becoming blighted. As Dana Berliner, an IJ attorney, said of the blight provision: “All of these are ways of saying we'd like to construct something else here that has a different layout.” (The governor replied that he was willing to consider changes.) The apparent exceptions to “economic development” are more problematic than the language about blight. In the case of a concept such as “economic development” which, as Justice Stevens pointed out, does not, in the first place, distinguish a different kind of eminent domain, making “exceptions” to “economic development” merely puts the question, what is the Constitution? We are back to square one; the concept of “exceptions” retards, rather than advances, the inquiry into eminent domain.
John Ryskamp, J.D.
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