Backlash Against the Kelo Backlash?

Tom Blumer at Bizzyblog has a look at the "backlash" against the "Kelo backlash" and decides that it doesn't hold water, discussing a column by one Michael Kennedy in the New London Day newspaper justifying Kelo:

Regardless, here's one guy [the columnist, Michael Kennedy] who thinks Kelo was a good ruling. I don't agree. If the Kelo Seven are being selfish, shortsighted, obtuse, etc., it's their right. They earned that right when they took ownership of their property. So-called larger societal goals beyond those that truly benefit the common good (roads, bridges, etc.) don't enter into the equation. Sorry, Mr. Kennedy.

Well said.

Also, Tom has a number of good links on this post that follows some of the fall-out from the case, including this one on the "fair market value" to be received by the displaced homeowners.

If this is something on which Tom and I can actually agree, then this is definitely more evidence of the widespread nature of the anti-Kelo backlash that I described last week.

I'm curious -- if the CT state legislature passes a law saying that takings can only be for true public uses, can it be retroactive?

Also, has anyone thought of going after Pfizer? The negative publicity spillover onto them can't be making them happy. A much more targetted attack could have real effects. Imagine if Pfizer says to New London, "Look, leave the Kelo Seven alone or you'll be sorry." Obviously, Pfizer has the power to make New London very, very sorry. Pfizer is not a direct beneficiary of the takings. They have their research facility, and the people who want the Kelo Seven's property are people who want to build businesses (restaurants, hotels, etc.) to make money off of Pfizer employees and visitors. Why shouldn't Pfizer take the side of their Kelo Seven neighbors rather than the side of the swarm of money-grubbers wanting to make a buck off of them? It wouldn't cost them much, and the PR value shouldn't be underestimated.

cathy :-)
8.15.2005 1:19pm
Good post cathy
8.15.2005 1:52pm
Larry (mail) (www):
Yes, an anti-takings bill under the CT Constitution can be retroactive.

But, I don't know why all of the politically-oriented law professors are calling this a "backlash." States can limit the powers of towns and/or municipalities with or without Kelo. The Supreme Court identified a potential problem in the democratic process as it stands, and although most blogger were clamoring for judges to overrule the democratic decisions of the good people of New London, they decided not to, and instead drew attention to a problem that could be remedied by the CT General Assembly.

It is Pfunny that Pfizer is a big supporter of the Pfederalist Society. I wonder why they are not being lionized by them.
8.15.2005 1:52pm
Larry (mail):
I didn't know that lawyers were allowed to use emoticons.
8.15.2005 1:52pm
Pfunny post indeed. The thing about Pfizer and the Pfeds is that pfrequently private businesses use pfree market tools available to them, such as loop-holes in law (which seems to be what Kelo opened) to get what they want. See Cathy's post-Pfizer didn't destroy liberties and due process, the Highest of all High Courts did (as did the New London City Council). Although I do agree that the Pfeds cast spells, drink blood, and pfrustrate liberals.
8.15.2005 1:58pm
SimonP (mail) (www):
I'm still hung up on the idea that Kelo was wrongly decided. Can someone explain to me what the principled distinction between "public use" and "private use" is among:

1) Taking my house to build a road.

2) Taking my house to build a jail.

3) Taking my house to build a school.

4) Taking my house to enable a private elementary, secondary, or post-secondary school to build.

5) Taking my house to build a recreational lake.

6) Taking my house to build an industrial park to attract new industry to my town.

7) Taking my house to allow an existing manufacturer to expand.

In other words, how do you distinguish between those items that "truly benefit the common good" and those that don't?

8.15.2005 2:01pm
Dick King:
"Public use" should as a minimum require that the actual use of the land be governed by elected officials. That covers roads, jails, and schools, even if they are actually built by a private company with a 20 year lease to the government for the public purpose.

8.15.2005 2:09pm
David M. Nieporent (www):
In other words, how do you distinguish between those items that "truly benefit the common good" and those that don't?

You don't. That's why that's not the test laid out in the constitution.

The constitution mandates that the takings must be for "public use." What you have asked is a policy question, to be determined by the legislative and executive branches; the courts don't exist to evaluate whether a particular project is a good idea. Only whether it's constitutional.
8.15.2005 2:10pm
It's interesting that Bizzyblog gives credit to Alabama for its Kelo "reform" even though the law has an exception big enough to drive a bulldozer through: it allows Kelo takings of "blighted" neighborhoods.

So if you're rich, your safe. If you're poor, you're out of luck. If you're in the middle class, you're at the mercy of whether your city wants your house bad enough to call it "blighted."

Why would anyone opposed to Kelo give Alabama credit for passing this law? Y'all have been snookered.
8.15.2005 2:29pm
Cheburashka (mail):
SimonP: You're right. Kelo was rightly decided. The "public good" clause doesn't read as a limiting factor any more than "A well regulated militia..." does.
8.15.2005 2:51pm
SimonP (mail) (www):
Thank you, David, for your insightful . . . oh, wait, I mean, thanks for ignoring the question. But I'll take your bait: using the examples I listed above, please explain to me which are for "public use," which are not, and what rule a judge should apply to distinguish between the two categories.

Dick King offers such an explanation, although I don't think its practicable or consistent with current (pre-Kelo) doctrine.
8.15.2005 3:05pm
David Berke:

Although I disagree with the Kelo decision and think that takings need to be "pulled back," I'm not really sure what extra mileage you get out of "public use" vs. "common good." One would guess that attempting to figure out what "public use" meant could easily lead to a "common good" standard. Perhaps you would respond "public use" = "used by the public." But that just leads to more questions; does it have to be absolutely open to the public? Relatively little is. Does it have to be free? Numerous state parks, etc, are not.

Is there something more substantial you (or for that matter anyone) can point to? I don't disagree with the conclusion, I'm just not sure how to get there in an intellectually honest fashion.
8.15.2005 3:10pm
Anthony Argyriou (mail) (www):
David Berke -

"Public use" would generally imply either that the government control the land, or that the owner must allow all comers. I prefer Dick King's standard, that the land must ultimately be controlled by elected officials, but a case could be made that using the property for a shopping mall, which would be open to all, might meet the public use standard. A private school or a factory would not.

Under the standard that Dick proposes, 1,2, 3, and 5 of Simon P's list would qualify; under the slightly broader standard I suggest, 4 would qualify only if the school accepted all applicants, and possibly not even then; 6 and 7 would not qualify, though building a shopping mall or expanding an existing retail establishment would.
8.16.2005 1:37am
SimonP (mail) (www):

Thanks for your response. But as I understand it, you (following Mr. King) think that it's ok to take my house to support some kind of businesses (i.e., retailers) but not others (i.e., manufacturers). I'm not sure why that distinction is important. If it is something as simple as "the public may enter the parcel regularly," consider whether we would impose such requirements on private, or even public, schools as a precondition for using land gained through eminent domain. If it's something more complex than that, I would want to hear more about what the rationale is and why it applies to retailers but not industrialists.

My overall concern with Mr. King's test is that it places great weight on what is basically a formalism -- control of the land. Suppose New London had taken the land and then signed a 99 (999) year lease with Pfizer. (Or, to tweak my No. 6, suppose that the town built an industrial park on spec and then kept title to it and leased space on some outrageously long term.) What result? If I understand the test correctly, that's ok. But then we are still left with people losing their houses to factories, and I'm not sure I want to be the one to explain to crosstown neighbors why one of them gets protection (if the company holds the land) while the other doesn't (if the town leases it.)


PS -- D. Berke, thanks for your comment.
8.16.2005 8:16am