January 27, 2010
Kelo, the Meaning of "Public Use," and Beyond
A recent decision from the United States District Court for the Western District of Pennsylvania presents some interesting issues about the law of eminent domain. In Whittaker v. County of Lawrence, 2009 WL 4744392 (Dec. 7, 2009), the plaintiffs challenged the condemnation of their parcels in connection with a proposed redevelopment project. Specifically, the plaintiffs argued that the project – a 500-acre industrial park – was not a public use under the Takings Clause. The district court rejected that argument, concluding that a local government’s economic revitalization efforts were “undoubtedly” public.
So far, all of this sounds familiar and in keeping with the Supreme Court’s decision in Kelo v. City of New London. But here’s the twist – unlike Kelo, where the state courts interpreted the state statutes as allowing the economic development taking at issue, the state law here (as construed by the state courts) affirmatively declared that this type of use was not “public” for purposes of the eminent domain power. Acknowledging this fact, the district court nonetheless held that the use was public for purposes of the Fifth Amendment. Here’s the central portion of the opinion (omitting citations):
States are undoubtedly free to create “public use” standards that are more demanding than that contained in the Fifth Amendment. Indeed, subsequent to the Supreme Court’s decision in Kelo, the Pennsylvania Legislature passed legislation generally prohibiting the use of eminent domain power for the purpose of facilitating “private enterprise.” It does not follow, however, that actions taken in contravention of such state proscriptions are likewise taken in contravention of the Public Use Clause. The content of the Public Use Clause does not “vary from place to place and from time to time.” The “public use” requirement is “coterminous with the scope of a sovereign’s police powers.” It does not change based on how a particular sovereign chooses to use (or not use) its police powers. As far as the United States Constitution is concerned, a “public use” in Connecticut is a “public use” in Pennsylvania. The Plaintiffs attempt to convert state statutory standards into federal constitutional requirements, “[b]ut constitutional law does not work that way.”
Whittaker, 2009 WL 4744392, at *18.
This is an interesting development, and one that I have wondered about since the Kelo decision came down. Even though Justice Stevens’ majority opinion in Kelo admitted that states were free to impose stricter “public use” requirements than that announced by the Court, it also stated that the Court’s authority “extend[ed] only to determining whether the City’s proposed condemnations [were] for a ‘public use’ within the meaning of the Fifth Amendment to the Federal Constitution.” Kelo, 545 U.S. at 489-90. The district court in Whittaker apparently took this last statement to heart.
One potential ramification of the reasoning used in Whittaker could be that property owners increasingly look to state courts and state law claims (either constitutional or statutory) for relief from proposed condemnations of their properties, rather than proceeding under the Takings Clause. But apart from that, there is another possible ramification: If “public use” under the Takings Clause is a matter of federal law that is defined uniformly regardless of any state pronouncements, then one might also argue that “property” under the Takings Clause is equally a federal question subject to uniform definition. In other words, perhaps there is some normative constitutional baseline that qualifies as “property,” beyond which the states cannot regulate without providing just compensation (regardless of their ability to regulate or define property interests in the first instance).
This latter argument has significant federalism implications, especially with regard to the question of judicial takings currently before the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection (about which Ben excellently blogged here and here). If “property” as defined in the Takings Clause means the same in Connecticut as it does in Pennsylvania (to paraphrase Whittaker), then perhaps it becomes easier for a federal court to say that a state court decision has taken that “property” irrespective of the state’s ability to change or define property rights as a matter of state law.
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Hmmmm. That's interesting. The Court has consistently said that it will look to the states to define "property" in the constitutional context. But why should that be? As you point out, states are capable of defining "public use" just as much as they are capable of defining "property". It does seem a little odd to defer to the states in defining "property" but not "public use".
Posted by: Ben Barros | Jan 28, 2010 7:27:04 AM
The Supreme Court has hinted that there is a federal component to the property concept, by using terms like "the historic compact of the takings clause" (or words to that effect) in Lucas and Palazzolo. Someday they might have to explain what they mean.
Posted by: Catherine LaCroix | Mar 8, 2010 5:01:24 PM