Seizing Private Property

JEFFREY BROWN:

On the one hand: The rights of property owners to keep their homes. On the other: The ability of local government to take action to revitalize a community.

In a closely watched case that literally hit people where they live, a sharply divided Supreme Court today decided in favor of local government. Here to tell us about it is our regular court watcher, Jan Crawford Greenburg of the Chicago Tribune.

Welcome, Jan. The local government in question is New London, Connecticut. Tell us the facts of the case.

JAN CRAWFORD GREENBURG:

Sure. This case came about in 1998 when New London approved a redevelopment plan of about 90 acres next to a new Pfizer research facility. It was wanting to expand its tax base and add jobs, so it approved this redevelopment project that included a hotel and office building, housing, open space, even space for a museum.

So it set up this development corporation. It authorized the corporation to buy up all this property and parcels to negotiate with the homeowners, and then it gave the corporation authority to go in and condemn the land of people who wouldn't sell, to actually take the property, pay them the fair price, and proceed with the redevelopment project.

A group of nine of the homeowners protested. They sued to block the redevelopment corporation and the city from taking their property. They said the city had no right to come in and take their property and that that violated the Constitution's Fifth Amendment.

JEFFREY BROWN:

So it went to the court. The court today, a slim majority, decided in favor of the local government, on Fifth Amendment grounds.

JAN CRAWFORD GREENBURG:

That's right.

JEFFREY BROWN:

Tell us what their reasoning was.

JAN CRAWFORD GREENBURG:

Well, let's talk about the Fifth Amendment, first. Of course the Fifth Amendment says that government may take private property for public use with just compensation.

JEFFREY BROWN:

And this is a — public use is the key phrase here.

JAN CRAWFORD GREENBURG:

Right, this case turned on what's public use. The homeowners in New London, Connecticut, said this is not public use. I mean, we get public use if we're talking about a school or a wastewater treatment plan, a utility line going in, or a railroad. But this is a private redevelopment project. This is a hotel and office building, put up by private developers, and that's not a public use, and so, therefore, under the Fifth Amendment, the government can't come in and take our property. That was their argument.

But the Supreme Court today rejected that argument. They said they've always considered public use to be a more broad term. They look back over cases dating back fifty, seventy-five, one hundred years, and said that this is constantly been the way the court has looked at public use.

Just because a private company may be developing the land doesn't mean that it might not have a public purpose. And here, the public purpose was to redevelop the land, to expand the tax base, and that was this part of a comprehensive redevelopment effort. So, therefore, the court needed to give deference to the local government, which had decided that it was for the public good to do this redevelopment project.

Now, the court said, look, this isn't like — and of course we recognize that, you know, you can't go in and take, you know, your property and give it to me. I mean, you don't take private property from one person –

JEFFREY BROWN:

Right.

JAN CRAWFORD GREENBURG:

— and give it to another person. We know that's off limits.

JEFFREY BROWN:

It's defining private property in a public sense.

JAN CRAWFORD GREENBURG:

In public use.

JEFFREY BROWN:

And traditionally, the takings clause did apply to things more traditionally — more traditional uses would be railroads, hospitals, things that we can easily say are public use.

JAN CRAWFORD GREENBURG:

That's right, but the court said, you know, economic redevelopment has long been a function of the local governments, and there were cases that paved the way for the development of the West: the irrigation lines and the railroad lines that were put in through the use of taking and eminent domain by governments. Courts had approved those uses many, many years ago.

JEFFREY BROWN:

Now, there was a strong dissent by Justice (Sandra Day) O'Connor who said this goes way too far.

JAN CRAWFORD GREENBURG:

This was a very sharp and harsh dissent by Justice O'Connor joined by the Chief Justice (William Rehnquist), Justice (Antonin) Scalia and Justice (Clarence) Thomas, and she said that today the court decision made all property fair game for local governments, that the specter of condemnation hung over every piece of private property, that from now on a Motel 6 could be replaced by a Ritz Carlton, a home could be replaced by a shopping mall, a farm replaced by a factory. She —

JEFFREY BROWN:

Pretty scary language actually —

JAN CRAWFORD GREENBURG:

Very strong language. Today's opinion by the court, she saw as a dramatic departure from these old cases that the majority in Justice (John Paul) Stevens opinion referred to.

Justice Thomas, by the way, also wrote a separate dissent, and he said that today's ruling would fall the hardest on the poor and the minorities, the people who have long been displaced by what he called the so-called urban renewal projects that compensation by a government can't make up for the humiliation of being driven, literally, from your home.

JEFFREY BROWN:

Now, we always want to look at wider implications. So where does this leave the argument? I guess the issue is how broad an application does this have?

JAN CRAWFORD GREENBURG:

Justice Stevens in his majority was careful to reject the — as he called it — the parade of horribles that Justices O'Connor and Justice Thomas talked about in their dissent.

Throughout the majority's opinion the court is very careful to say — as I said earlier, this isn't a case where the government is taking my property and just giving it to you —

JEFFREY BROWN:

Government still has to prove some kind of public good.

JAN CRAWFORD GREENBURG:

Right, that this is part of a carefully thought out, carefully planned, a comprehensive redevelopment scheme. That clearly had demonstrated they were very public and important public uses for that property. So the majority said that today's decision is not a major change, that they're just reaffirming the long view that governments can act for the greater good.

JEFFREY BROWN:

I understand that a number of states have put in place protections for property owners. Is that where this all goes now, to the states?

JAN CRAWFORD GREENBURG:

The Institute for Justice, the group that has really spearheaded this effort to get greater protection of property rights, an attorney I spoke with today said that's where the battle now will shift.

The majority opinion also says that states are free and notes that several states have already passed greater protections for private property. So we will see those battles unfolding in the states as well.

JEFFREY BROWN:

Let me ask you before we go, it was announced that Monday will be the final day of the court. That shapes up to be potentially a very big day.

JAN CRAWFORD GREENBURG:

That's right. Of course the last day of the term is always a big day. This year we're waiting on a number of important cases, including the Ten Commandments, whether or not public government can display Ten Commandments on public property.

But the reason most people, I think, will be watching the court on Monday morning, the reason the courtroom will be packed on Monday morning is because everyone is awaiting word from the Chief Justice whether or not he will step down as has been widely speculated. As you know, he's ill from thyroid cancer. So if the Chief Justice is going to announce from the bench that he will retire, we will hear that on Monday morning.

JEFFREY BROWN:

Widely speculated, but nothing certain.

JAN CRAWFORD GREENBURG:

That's right. And, the chief is has been widely speculated that he would retire before, and —

JEFFREY BROWN:

It hasn't happened yet.

JAN CRAWFORD GREENBURG:

Still 19 years as Chief Justice.

JEFFREY BROWN:

OK, we'll see what happens. Jan Crawford Greenburg thanks a lot.

JAN CRAWFORD GREENBURG:

You're welcome.