June 23, 2005
Supreme Court: Private use is "public use"
The U.S. Supreme Court has made its ruling in the Kelo v. City of New London case: In a 5-4 ruling, the court declared that (in the words of the Associated Press) "local governments may seize people's homes and businesses against their will for private development." The ruling clears the way for local governments to continue using eminent domain proceedings to clear land for private projects - including sports stadiums - on the grounds that creating economic development is a "public use."
Among the stadium plans that will benefit from the ruling is the planned $581 million Washington Nationals stadium, which would displace a bunch of local business owners who aren't too thrilled with the idea.
In other D.C. news, meanwhile, local businesses have begun objecting to the new stadium tax that the city started imposing this month, noting that it's skewed to take a bigger tax bite from smaller businesses and those with high cash flow. City council president Linda Cropp now says she might revisit the gross-receipts tax idea - at this rate, the stadium could be open for business before the D.C. council figures out how it's going to pay for it.
I always get a chuckle when a country founded on the principle (amongst others) of no taxation without representation also allows gov't to unilaterally take land for private development. People should be angrier about this ruling.
Having followed this case closely over the last few months and knowing the decision reached today was a likely possibility, I am still shocked by this decision. Certainly, the effects it will have on future stadium developments could be enormous, making the grab for stadium land much easier. It will be interesting to see if future homeowners who are to be displaced by a stadium challenge the economic development justification for public use. What evidence (studies) could public officials present to justify such action, considering the Twins have just dropped the economic argument in their bid for a new stadium.
I queried my brother (an intellectual property attorney) about this decision, and I thought I would share his comments to the group.
"This is really nothing new. Been happening for a long time. Check out the history of the development of Dodger stadium. Similar case took place in Hawaii while I was in law school.
Right in the constitution: "nor shall private property be taken for public
use, without just compensation" [Fifth Amendment]
Plus, nothing is forever -- the Supreme Court reverses itself all the time -- just takes another 5-4 vote. Moreover, states/municipalities can enact their own laws giving more protection against state takings (as opposed to
Federal takings)."
While I support the Brooklyn project, I am not to crazy about this ruling. Whats STUNNING is it was the Conservatives who were in the dissent
It's not that stunning that the conservative Justices were in the dissenting camp; they've generally supported individual property owner rights for some time now in their decisions.
What I object to about this decision is the idea that a taking for private use which purports to bring some sort of public benefit constitutes a "public use." This is such a perversely broad reading of the term. Pfizer is the primary beneficiary in the case. Any purported public benefit is incidental, entirely speculative and too remote to be considered a public use, in my opinion. The takings clause in the 5th amendment is so completely unambiguous about this. It was clearly intended to be a limiting device on this extraordinary power. Even though the Court has moved in recent years towards a more expansive reading of what constitutes public use, going beyond the traditional reading of parks and roads and such, I think this is a very flawed decision that gives way too much power to municipalities and connected developers. To think these folks are losing their homes so that Pfizer, one of the most powerful companies in the world, can make more Viiagra pills at their factory, is unbelievable. BTW, the submission form wouldn't let me type the word "Viiagra!" WHat's up with that?
The V-word is one that I had to ban in order to block spammers from plastering ads all over the comments here. I figured nobody would need to use it in a discussion about stadiums anyway - I should have known better. (I'm sure any minute now Pfizer will buy naming rights to a stadium and really make a mess of things...)
7 of the 9 (in)Justices are Republican appointees. That there was a liberal majority is spin.
Scalia, Thomas and co. dissented while Ginsburg and Stevens (who authored the majority opinion even though he wasn't present when the case was argued) ruled in favor of New London. Not to mention that the NY Times wrote and editorial praising the court's decision. So you can't argue that the more liberal justices prevailed in this decision.
