This land is WHOSE land?
Co-ops host property-rights debate
Given the all-encompassing authority we permit
the Supreme Court of the United States to wield over our day-to-day
conduct as a society, it’s perhaps surprising that the
number of its decisions most of us are able to identify by name
can typically be counted on a single hand with fingers to spare.
To the very short list of cases widely recognized, the court
added one last June.
In Kelo v New London, a 5–4 court ruled
that economic development was a sufficient “public purpose”
for the City of New London, Connecticut, to hand over the residential
property of Susette Kelo and 14 other homeowners to a private
developer with plans for a conference hotel, office space, and
marina.
In the main dissenting opinion, Justice Sandra
Day O’Connor (joined by Chief Justice Rhenquist and Justices
Thomas and Scalia,) wrote, “Under the banner of economic
development, all private property is now vulnerable to being
taken and transferred to another private owner, so long as it
might be upgraded.” Later, the justices make clear their
concern that “upgraded” will in many if not most
cases be taken simply to mean more productive of tax revenues.
The decision and its aftermath still generate
headlines. From coast to coast, state and federal lawmakers
have introduced bills restricting the condemnation power. Analyzing
the implications, the Wisconsin Electric Cooperative Association
(WECA) recognized a two-edged sword.
Eminent domain can be a necessary last resort
in siting electric transmission corridors, WECA Statewide Manager
David Jenkins told a conference of energy producers and consumers
last October. But what happens when a utility that benefits
from eminent domain then asks for a super-return on rates, he
asked.
“The more a transmission line looks like
a private investment instead of a public good, the more we undermine
the legitimate use of eminent domain,” Jenkins said.
By then, Kelo had been chosen as the “Great
Debate” topic for the November 2005 annual meeting of
the Wisconsin Federation of Cooperatives, and two exceptional
advocates had been recruited.
Pros Weigh Pros and Cons
Lee McGrath, founder of the Minnesota chapter
of the Institute for Justice, would argue against the court’s
Kelo decision. The Washington, D.C.-based Institute provided
legal counsel for Susette Kelo in the Supreme Court proceedings.
Andrew Phillips of Stadler, Centofanti and
Phillips S.C., in Mequon, has represented the Wisconsin Counties
Association for more than 10 years and has argued numerous cases
before the Wisconsin Supreme Court. He would defend the Kelo
ruling.
As Federation staff carried in dozens of extra
chairs for the good-humored but largely unsympathetic overflow
crowd, Phillips gamely acknowledged his predicament in “defending
a position that’s polling at about 10 percent.”
But he declined to play the underdog. Phillips
said the adverse reaction to Kelo stemmed from several myths,
chiefly that the decision broke new ground. Fifty years of precedent
say eminent domain is acceptable in promoting economic development,
which is “a traditional and long-accepted function of
government,” he said.
In New London, Phillips argued, “a proactive
municipality is seeking to remedy unemployment” with a
plan that’s expected to create more than a thousand jobs.
McGrath countered that a 1795 Supreme Court
decision referred to eminent domain as “the despotic power,”
saying he was “pleased to argue for less despotism rather
than more despotism.”
The Constitution’s Fifth Amendment,
McGrath said, permits takings only for a “public use,”
meaning the public must own, use, and have access to the taken
property. “Only lawyers would call a private use a public
use,” he said.
Troubles Ahead?
The debaters anticipated different sets of
problems, depending on reactions to Kelo. Legislation that would
“hamstring people and local elected officials” could
have the perverse effect of sparking more litigation in such
cases, Phillips said, asking, “Do you want the Supreme
Court making local land-use decisions?”
McGrath cited a more basic concern, warning
that behind the fig leaf of economic development, officials
could use eminent domain to “rain favors on the politically
well-connected,” playing the role of “Robin Hood
in reverse.”
Neither pronounced the status quo satisfactory.
Phillips suggested procedural and compensation reforms could
make the exercise of eminent domain more acceptable but advised,
“let’s not overlegislate,” advocating local
decision-making and noting the impossibility of foreseeing every
circumstance.
McGrath responded that New London followed
“marvelous procedures,” however, “City planners
start with a clean sheet. They know where they want to go and
they won’t let anyone’s private property get in
their way.”
In the end, most of the audience clearly would
have agreed with Justice Thomas, who added a separate dissent.
Thomas found it ironic that the standards
government must meet before searching a home are tougher than
those required for seizing it. “Something has gone seriously
awry with this Court’s interpretation of the Constitution,”
he wrote. “Though citizens are safe from the government
in their homes, the homes themselves are not.”—Dave
Hoopman
