COLUMN --- Property rights remedy lies with Legislature

Wednesday, June 29, 2005


Number me among those that believe the Supreme Court got it wrong in Kelo v. City of New London. However, don't put me among those whining about judicial activism, wringing their hands about the destruction of property rights and wailing about the end of the American way of life.

Amidst the whining, wringing and wailing, the actionable reality of the Kelo decision is being overlooked. True, Kelo opens the door for Snidely Whiplash government officials to evict widows and orphans (and anyone else) from their property to make way for communities with clock towers and gazebos or job-promising corporations, but only if Minnesotans allow that to happen. There are still Dudley Do-Right options.

Kelo is a significant case. By a 5-4 margin the Supreme Court held that New London properly invoked Connecticut law when, under the guise of "economic development," it used eminent domain and public money to force the sale of private homes and then transferred the property to private developers. In a dissenting opinion, Justice Sandra Day O'Connor writes, "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner … given to an owner who will use it in a way that the legislature deems more beneficial to the public."

Welcome to Snidely — but Kelo also leaves an out. Writing for the majority, Justice John Paul Stevens states, "We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power." States may limit eminent domain through state constitutional law or state statutes. Concurring, Justice Anthony Kennedy notes that there may be cases in which private-to-private transfers of property through eminent domain are "suspicious" or "prone to abuse" or the "purported benefits are so trivial or implausible" that the courts "should presume an impermissible private purpose." Thus, the Supreme Court supports two actionable options.

When your only tool is a hammer, all your problems start to look like nails. Because the early analysis of Kelo is by lawyers, eminent domain policy looks like it should be pounded only in state courts. And Kennedy's opinion endorses that option.

However, lost in the judicial emphasis is the fact that eminent domain is only one element of government-inflicted economic development and at that, the element of last resort.

The need for eminent domain does not originate in the courts. Its source is the Legislature. Given the clear blessing in the Supreme Court decision, action by the Minnesota Legislature ought to be the prime option for countering Kelo. Parallel to the national experience, Minnesota's judicial expansion of the text "public use" to a broader interpretation of "public purpose" has followed, not led, politically "progressive" legislation.

In the 1950s and '60s "public use" expanded to include private-to-private takings to rebuild blighted areas. During the '70s, public money intended to promote private investment in urban "redevelopment" justified use of eminent domain.

By the mid-1980s replacement of one private business with another was justified simply on anticipation of an increased tax base and higher employment. The '90s saw financial incentive become a virtual competitive necessity among communities to lure private investment. Today, community give-backs are considered an entitlement by expanding businesses and developers.

In that environment, new urbanists continue to push for subsidized "smart growth," "urban redevelopment" projects. Legislators push bonding pork meant to "rejuvenate" economically depressed areas. Businesses hold communities hostage for tax incentives and subsidies for new construction. To pay for those gains, communities must transfer funds meant for public use to private hands, which means higher taxes for everyone else. The "gain" is largely illusionary, but a clock tower or a corporate campus always looks good on campaign literature.

Kelo makes those legislative self-serving efforts easier. A "carefully considered development plan" for a noble or profitable purpose is all that's required of government to confiscate your property.

However, working-class families being evicted from their homes is also a reminder of the human cost of we-can-do-it-better government planners. Government may unleash the power of eminent domain, but we ordinary Minnesotans still hold the leash on government officials. We need the will to yank it. Minnesota needs to join the states with legislation that limits government's ability to confiscate private property for "economic development."

Is there a Dudley Do-Right in the Legislature with the courage to champion that cause?

UPDATE: Just received the following press release (6/29):

Responding to Supreme Court Ruling

REP. GREG DAVIDS BILL WOULD TOUGHEN

MINNESOTA’S EMINENT DOMAIN LAW

ST. PAUL -- State Rep. Greg Davids (R- Preston) has introduced legislation that would toughen Minnesota’s eminent domain law to prevent government entities from seizing or acquiring private property for other than public use or benefit. Davids’ bill comes in response to a recent Supreme Court ruling that would allow government entities to take property and turn it over to private developers.

“What the Supreme Court did is to wrongly redefine the Fifth Amendment, allowing government entities to apply eminent domain for economic development,” Davids said. “That’s not what our founding fathers intended. Protecting property rights is vital.”

Davids pointed to the dissenting opinion of Justice Sandra Day O'Connor who said that as a result of the Supreme Court’s 5 to 4 decision, all private property is now vulnerable to being taken and transferred to another private property owner “under the banner of economic development.”

Davids’ legislation says that “Eminent domain must not be used to acquire real property for any purpose … if the property acquired is intended to be sold, leased, transferred or otherwise conveyed to a person or nongovernmental entity without the power of eminent domain.”

Davids said he’s unsure whether the bill could be acted upon during the ongoing special session, but he expects it would receive quick action in 2006.

“No matter what your political stripe, Republican, Democrat, Independent or whatever, you’re harmed by the Supreme Court decision, “Davids said. “Minnesota must take action to preserve the rights of property owners.”