A few years ago eminent domain, or the government's right to take private property for public use, was hardly a hot button issue. But this fall it has become the most widespread topic on ballot initiatives across the country, in large part a reaction to a recent controversial Supreme Court decision.
Public outcry began in 2005, when a narrow majority of the Court ruled that local governments could seize property and turn it over to private developers.
In the case of Kelo v. City of New London, Susette Kelo and others were forced to move so that the city of New London, Conn., could "revitalize" their neighborhood with a commercial project.
Justice Paul Stevens, writing for the majority, said that cities were justified in taking such property because "promoting economic development is a tradition and long accepted function of government." Stevens invited local jurisdictions to enact their own restrictions. "Nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power."
According to the National Conference of State Legislatures, since the Supreme Court ruling 30 state legislatures have passed laws or prepared ballot referendums to restrict the power of local governments. This fall, 13 states have ballot measures that would hamper the ability of local governments to seize property for economic development purposes.
Larry Morandi, who studies eminent domain for the National Council of State Legislatures, said that the restrictions vary widely from state to state, but that "most states have passed legislation by huge margins. In most cases, it is not a partisan issue."
Florida has passed legislation requiring a three-fifths vote of both Houses to approve the use of eminent domain to transfer private property to another private entity. Louisiana's legislature stipulates that economic development should not be considered in determining whether the taking of a property is for public use.
Steve Bullock, the attorney who represented Suzette Kelo, predicted the ruling would open the floodgates across the country, with local governments using the ruling to condemn property for development. "We see two interesting things happening. Cities and states were emboldened by Kelo, but hand in hand with that was a tremendous backlash against the Court's decision. Bullock's group, Institute for Justice, claims that since the Kelo ruling, some 5,000 homes, businesses, churches and other properties have been seized for transfer to another private party for development.
According to Bullock, "The reaction is incredible, the backlash is severe. It has lead to a sea change."
Donald Borut, executive director of the National League of Cities, is a strong supporter of the use of eminent domain in certain situations but admits the Kelo ruling has caused an "emotional tsunami." He said, "Eminent domain is a power used as a last resort. I acknowledge there may be some abuses, but we do believe communities have used this as a part of a process to address blight, create housing and economic activity for our communities." But Borut said it is difficult to demonstrate how communities can change. "Look at Baltimore Harbor or Kansas City. Eminent domain was used to ultimately turn these communities around and create opportunities."
Perhaps the two harshest critics of the Kelo decision were Justices Sandra Day O'Connor and Clarence Thomas, who wrote in dissent of the 5-4 ruling.
O'Connor wrote , "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." And Thomas, in his dissent, added, "Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities."