Thursday, January 29, 2009

Blackman on Class Actions and Eminent Domain

Josh Blackman (George Mason) has posted Taking the Home of a Class of One and the Path of Least Resistance: How the Equal Protection Clause and Village of Willowbrook V. Olech Can Protect Homeowners from Eminent Domain Abuse on SSRN.  Here's the abstract:

In the landmark case of Kelo v. City of New London, the Supreme Court held that the government can use the power of eminent domain to take a person's home, even if the purpose is for private development that can perhaps improve the community's economy. This case dealt a deathblow to property rights, and made challenging eminent domain takings for private development under the Fifth Amendment a daunting, if not impossible task. Because eminent domain takings disproportionately fall on poor, uneducated, minorities who lack access to the political process, Kelo greatly impacted the ability of the weakest parts of society to keep their own homes free from the path of the bulldozer. In this article, I propose a novel alternative avenue to challenge these takings.

In 2000, five years before Kelo, the Supreme Court held in Village of Willowbrook v. Olech that plaintiffs can establish a class of one under the Equal Protection clause. Prior to Olech, arguably, plaintiffs could only establish classes based on inherent characteristics, such as race or religion. However, after Olech, homeowners whose property is singled out for eminent domain, while other similarly situated properties are not, can establish a class of one (i.e., those whose homes are taken) and can bring suit to challenge the arbitrariness of the decision to take the property. While Olech has been used to challenge zoning and other land use restrictions, to date it has not been proposed as an means to challenge an eminent domain taking for private development. In this article, I advance the argument that an Olech claim is an essential mechanism to enable homeowners, especially poor, uneducated, minority citizens who cannot actively participate in the political process, to challenge the differential treatment and rationality of an eminent domain taking for private development.

This article proceeds as follows. In Part I, I discuss the history of urban renewal. Urban renewal was a movement wherein governments used the broad power of eminent domain to condemn homes as blighted, and effectively, and perhaps intentionally, displaced poor and minority homeowners. Today, although eminent domain takings are no longer motivated by racial animus, statistically the effects of this process disproportionately fall on poor, uneducated minorities.

In Part II, I begin by explaining how suits are filed under the Equal Protection clause through 42 U.S.C. 1983. Next, I explore Village of Willowbrook v. Olech in detail. Olech established that a plaintiff can establish a class of one, irrespective of traditional classifications, such as race, religion, or gender. Olech represents a significant tool plaintiffs can use to seek remedies against land use regulations when they are intentionally singled out by the government for different treatment than other similarly situated homeowners. In many cases following Olech, plaintiffs have had a very high success rate of challenging the rational basis test, even in the absence of proving governmental malice.

In Part III, I develop the necessary elements of a viable equal protection claim challenging an eminent domain taking for private development under Olech. First, the plaintiff needs to establish that he is a member of a class. This is a facile task in light of Olech's holding that a class of one can exist. Second, the plaintiff must establish that the government intentionally treated him differently than similarly situated citizens. Third, the plaintiff must show that the decision to take the property was irrational. Relying on Justice Thomas's dissent from Kelo, as well as Footnote Four of United States v. Carolene Products and Professor Ely's representation reinforcement theory, I argue that the courts should apply a heightened form of scrutiny to protect the interests of the poor, uneducated, minorities who lack access to the political channels. By applying standards using in City of Cleburne v. Cleburne Living Center and Roemer v. Evans, the courts can faithfully apply the principles behind Footnote Four, and help protect the most vulnerable members of society, and those most in need of protection against eminent domain.

Ben Barros

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