Sample Brief previously submitted by a student in BUAD 3470.

I. KELO et al. v. CITY OF NEW LONDON et al.

II. CITATION: 545 U.S. 469 (2005)

III. FACTS:

The city of New London, Connecticut, after the closing of the Naval Undersea Warfare Center, reactivated the New London Development Corporation (NLDC), a non-profit entity for land development in the city, specifically the Fort Trumbull area vacated by the U.S. Navy.

Pfizer Pharmaceuticals, Inc. expressed an interest in locating a research and production facility in the area. The city advised the NLDC to move forward with its plans. Over 90 acres of property were purchased and acquired through eminent domain for the development of residential housing, recreational, marina, retail and industrial parcels. Of the 90 acres, thirty-two of the acres came from Fort Trumbull and the remainder from private owners. All private owners, except 15, sold to the city for the project. The remaining 15 held out not for money, but for emotional and sentimental reasons. The Supreme Court of Connecticut ruled in favor of the taking of the private property under eminent domain. The United States Supreme Court granted certiorari and grouped all 15 cases in one appeal.

IV. LEGAL ISSUES:

Is the use of eminent domain to acquire property by the government and redirect for private use repugnant to the Fifth Amendment of the U.S. Constitution which reads “…nor shall private property be taken for public use, without just compensation”? Is the taking of property from A and giving it to B for economic development a “public use” under the Fifth Amendment?

V.COURT DECISION:

In a 5 to 4 decision, the Supreme Court upheld the decision of the Connecticut Supreme. Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer were in majority with Justices O’Connor, Rehnquist, Scalia, and Thomas dissenting.

VI. OPINION AND REASONING OF THE COURT: (by Justice Stevens)

The majority opinion and decision of the court was delivered by Justice Stevens. The majority opinion was primarily based on two previous court rulings, Hawaii Housing Authority v. Midkiff, (1984) and Berman v. Parker, 346 U.S. 26 (1954). In both cases the local government took property through emminent domain and redistributed it to private entitites for development and urban renewal.

The majority opinion held that the New London land in question is part of a “carefully considered” development plan. The opinion conceded that, “The sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.” However, because the taking is part of a development plan and not just an arbitrary re-distribution of property, this makes it acceptable. The lower courts had found that there was no evidence of illegitimate purpose in this case, that the taking of the property was not for the sole benefit of one person. And while the land is not freely accessible to all, the New London project sufficiently satisfies the “public use” requirement of the emminent domain clause of the Fifth Amendment. The duty of the court is to determine if the “public use” requirement is being met. The majority quoted Justice Douglas in the Berman v. Parker case, stating, “We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive.”

The duty of the court is not to look at each individual building, but at the project as a whole and determine if it meets the “public use” guideline. Individual property is the concern of the local legislature which is in a better position to review each property and its relation to the project as a whole.

VII. CONCURRING OPINION (delivered by Justice Kennedy)

Justice Kennedy called for a rational-basis review eminent domain cases to determine if one particular party will benefit greatly over others. Such a review was outlined in both the Hawaii Housing Authority and Berman cases. However, in the New London case, the majority of the parties were unknown and no one party could unfairly benefit from the transaction. Pfizer was not benefitting from the development as the project was already conceived and being executed when Pfizer expressed an interest in locating there. The land transfers were part of a comprehensive plan that was already in the works, and no one group was favored in the transaction.

VIII. DISSENTING OPINION (delivered by Justice O’Connor, joined by Chief Justice Rehnquist and Justice Scalia)

Justice O’Connor gave a very strong dissent. Referring to the words of Justice Chase in 1798 who wrote:

“An act of the Legislature (for I cannot call it law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legilative authority…A law that takes property from A and gives it to B: It is against all reason and justice for the people to entrust a Legislature with such power; and, therefore it cannot be presumes that they have done it.” Calder v. Bull 3 Dall.386,388 (1798)

Justice O’Connor 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.”

Justice O’Connor proposes a limited Constitutionalist view of eminent domain holding that property taken under the Fifth Amendment must be strictly for public use and in no way should benefit any single or limited group of people. The taking of property must be for the good of all people equally.

Justice O’Connor laid out three primary areas where emminent domain has come into play. First, to acquire land for roads, a hospital, or a military base. The second to acquire land such as a railroad, public utility, and public stadium. The third is for certain private enterprises such as in the Hawaii Housing Authority and Berman cases. In these two cases there were extenuating circumstances. In Berman, the area was so blighted as to be a health hazard. In Hawaii Housing Authority, the majority of the land was in the hands of so few people, it was “skewing” the state’s residential fee simple market. In both cases the public good was being served without unduly benefiting a select group of individuals.

O’Connor said it is the role of the court to determine whether transfers are solely for the benefit of a private transferee. Also, eminent domain is to upgrade and not downgrade property. She agreed that the real power of eminent domain should rest with local and state legislature, but it should be done with a watchful eye by the courts because “the beneficiaries are likely to be those citizens with disproportionate influence and power in the political process.” Justice O’Connor concluded that the taking of the New London property was unconstitutional and that the decision of the Connecticut Supreme Court should be reversed and remanded for further proceedings.

IX. SEPARATE DISSENTING OPINION BY JUSTICE THOMAS

Justice Thomas said that the “public use” clause of the Fifth Amendment has been erased from our Constitution. The “public use” clause along with the “just compensation” clause in the Fifth Amendment are an express limit on the government’s power of eminent domain.

He pointed out that “public use” is very different from “general welfare” used elsewhere in the Constitution. These takings fall more in line with “general welfare” than “public use”. Justice Thomas looks on the “takings” clause as not a grant of power but a prohibition, and that takings should only be done when absolutely necessary.

Justice Thomas referred back to the early grist mill laws as the origin for the “takings” clause. Such laws gave compensation to landowners whose land was flooded by water powered grist mills. The taking later moved to public roads, ferries, canals, railways, and parks, all within the scope of “public use.” The current interpretation of “public use” has deviated from its natural reading to two lines of cases. The first are those that adopt the “public purpose” interpretation, and the second are those that defer to the legislature judgment regarding valid public purpose.

Justice Thomas criticized the “actual use tests” that were laid out in both the Hawaii Housing Authority and Berman cases. Once applied there is no limit on what constitutes “public use.” He argued that the results of the present decision are easy to predict. The neighborhoods of the less affluent and less influential of society will be the target of hastily drawn revitalization programs and the takings will be the rewards of the few rather than the public good. He urged the Supreme Court to return to the original intent envisioned by the framers of the Constitution, that is to restrain and prohibit the arbitrary taking of property.

X. PERSONAL OPINION BY STUDENT

I agree with the dissenters in this case. The Constitution is clear that the government should not take land unnecessarily, and moreover for the benefit of private individuals. This harkens back as far as the original Magna Charta. The sovereign shall not disposess people from their land or property. The path that this leads down is one where the most influential in our society can take whatever thety like with the blessings of the court under the guise of “public use.” It is easy to see from the cases cited and the dates, that the more recent the case, the more liberal the intrepretation of “public use.”