Whether or Not Congress Acts, The Supreme Court Should Rehear and Remand Kelo,
Its Controversial Recent Ruling Allowing The Taking of Private Homes for Private Development

By DOUGLAS KMIEC

Friday, Aug. 05, 2005

Supreme Court decisions often make headlines -- for a day or so. Then, the nation's attention usually moves on. Not so, however, with the Court's recent, notorious decision in Kelo v. New London.

Despite a Supreme Court vacancy, a popular and highly debated nominee, the Karl Rove/Valerie Plame imbroglio, and the anxious follow-up to the London bombings, the nation's attention remains transfixed upon the injustice of forcing families from their homes for the economic development advantage of other private owners. And rightly so.

What the nation sees intuitively is also the right answer legally: It was an abuse for a Connecticut town to use eminent domain this way, and it was a grievous mistake for even a narrow 5-4 majority of the Supreme Court to sanction that abuse.

The notion remains unexplained, and unexplainable, by the constitutional words "public use."

In the Wake of Kelo: Both Federal and State Bills to Protect Homeowners

As a result of Kelo - and the outcry it caused -- Congress and dozens of states have introduced legislation seeking to reinstate the Constitution's intended protection of private property.

Proposed federal legislation would limit the use of federal power or money for condemnations "to advantage one private property [owner] over another," or to expressly exclude such private economic development from being deemed a "public use."

Alabama -- the first state to actually pass legislation - has precluded the use of condemnation "for the purposes of private retail, office, commercial, industrial, or residential development; or primarily for enhancement of tax revenue." Obviously, the state was reacting to the very facts which gave rise to Kelo, and making a good faith attempt to prevent a recurrence of those facts.

Meanwhile, the petitioners in the actual case the Court heard -- Susette Kelo and her neighbors -- remain under the threat of bulldozer, but its engine is temporarily in neutral. Connecticut defeated a proposal to protect "owner-occupied residential dwellings" from being condemned "for use in a municipal development project that will be privately owned or controlled." At the governor's urging, however, the state has put in place a moratorium, in order to study matters further.

The Problem With Kelo: It's a Standing Invitation To Abuse Eminent Domain

As these measures are considered, the Court's unfortunate misinterpretation of the Constitution's Takings Clause - and, in particular, its "public use" requirement -- remains a standing invitation to abuse.

In the oral argument before the Court, the Institute for Justice (IJ), the pro bono advocates for the homeowners in New London, cautioned the Court about the ill effect of disregarding the text of the Constitution. Indeed,

Justice O'Connor and the other justices in dissent were deeply troubled - and rightly so. "The specter of condemnation hangs over all property," worried Justice O'Connor. "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The majority dismissed these concerns as mere "hypotheticals." To the petitioners' plea to stick to the founding conception of the Takings Clause and categorically exclude economic development takings, the Court said no. When the homeowners argued that "public use" ought to stay limited to an actual use by the public or at least an assured right of public access, the Court said no again. Instead of setting forth clear guidelines, Justice Stevens - writing for majority - simply deferred to the urban planning of the municipality and said other cases "can be confronted if and when they arise."

Well, they're here. The ink was barely dry on the opinion when a Texas town filed to seize two family-owned seafood companies, in favor of transferring these properties to a fancier business with a private boat marina.

A few weeks after Justice O'Connor's expression of worry, a Missouri municipality voted to condemn 85 homes and small businesses, intending to use the property for a $165 million shopping center and office complex.

And yet another city in the "show-me state," Arnold, plans to take 30 homes and 15 small businesses, transferring the property to be used for a Lowe's and a strip mall.

The Petitioners Were - And Remain - Right About the Meaning of "Public Use"

As a matter of law, IJ was right to ask the Court to observe the actual words of the Fifth Amendment: "Public use" means what it says - public, not private use. And the Court should have said so.

This bright line rule would have supplied needed reassurance to homeowners and viable small stores and shops, been faithful to original understanding, and kept the Court out of the sticky business of second-guessing municipal judgment.

IJ's fall-back position was to suggest a more limited deference to municipal judgment that would be given only where the city or town demonstrates that the touted economic benefits - the ones that supposedly will follow by transferring property from one private landowner to another -- are reasonably certain. That standard was second-best, however, and would have cut against the grain of the separation of powers - asking courts to question legislative decisions based on speculation about future events, rather than constitutional principle. Judges have no special insight into whether promised economic benefits will materialize. But that said, one would have to be blind to the realities of urban redevelopment not to notice that a good many of the "benefits" of these takings are never realized.

Instead, writes Steven Malanga, a contributing editor of City Journal, "[t]hroughout the country, cities have liberally used eminent domain to take land in order to build publicly subsidized mega-projects that have wasted tax dollars and distorted the private marketplace."

In New London, itself, the homes to be wrecked are to facilitate the construction of a commercial office building for which recent published reports indicate there is, in fact, little or no current market.

A New Petition for Rehearing and/or Remand, and Why It Should Be Granted

IJ has now petitioned the Court for rehearing after judgment. Supreme Court practitioners know this as the ultimate Hail Mary. It should be. Where a case has already had full briefing and argument, the Court should seldom be asked to expend additional judicial effort. But Supreme Court Rule 44.1 allows it in the rare case - and this is that rare case.

The prerequisites? A majority of the Court must agree that rehearing is warranted, and it must do so at the urging of a Justice who concurred in the judgment - not one who dissented. In this instance, that could be any member of the majority (Stevens, Souter, Breyer, Ginsburg, or Kennedy).

But if anyone is going to catch this "Hail Mary" pass, it's Justice Kennedy.

Kennedy concurred separately in the Kelo decision, indicating that he understood the majority to allow for a more demanding standard of review to apply to a subset of economic development takings where there is "a plausible accusation of impermissible favoritism to private parties." That accusation, said Kennedy, "should [be] treat[ed] . . . as a serious one and [the trial court should] review the record to see if it has merit."

In fairness, Justice Kennedy supposed this had been done in Kelo, but a close look at the record suggests it had not.

At the time of trial, the specific private beneficiaries had not even been identified, and no development agreement had even been signed. How, then, could the trial judge have evaluated favoritism, let alone resolved, in an informed way, the question of whether the public benefits to be supplied by the as-yet-unidentified private party would be, as Justice Kennedy said, "so trivial and implausible" that their very paucity would raise increased suspicions of impermissible private purpose?

Short of undertaking a full rehearing, itself, the Court could simply - and quite prudently -- vacate the lower court judgment and remand for a new examination of the facts by the trial court. This alternative, too, would be preferable to the status quo.

In deciding Kelo, the Court articulated a new understanding of "public use," with Kennedy's view arguably being the most precise statement of the holding. Even assuming that ruling is valid, it is a matter of basic fairness and standard practice, for the Court to vacate and remand to allow the trial court to apply a newly announced standard to the facts -- especially where, as here, some of the key facts were unknown at trial.

While Justice Kennedy's separate concurrence makes him the most likely to urge a rehearing for purpose of remand, Justice Stevens might wish to grasp this opportunity himself. After all, when Stevens dismissed the hypotheticals of abuse, which have now come to pass, he quoted Oliver Wendell Holmes, to the effect that the powers of government are "not the power to destroy while this Court sits."

Justice Stevens could help vindicate that very maxim by convincing the Court not to destroy family homes -- at least, not until the merits can be assessed, in the trial court, by the new legal standard he and the Kelo majority articulated.


Douglas W. Kmiec is Chair and Professor of Constitutional Law at Pepperdine University. He served as head of the Office of Legal Counsel (U.S. Assistant Attorney General) for Presidents Ronald Reagan and George H.W. Bush. Former Dean of the lawschool at The Catholic University of America, Professor Kmiec was a member of the law faculty at the University of Notre Dame for nearly two decades.

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