In case you somehow missed it, takings junkies, today, June 23, 2015, is the tenth anniversary of the U.S. Supreme Court's excreable 5-4 decision in Kelo v. City of New London, 545 U.S. 469 (2005), and just about anyone who is anyone in our field has weighed in with a retrospective. We don't have much to add, since wiser minds than ours have some very cogent thoughts.
But here's how we view the decision, ten years on:
- Still stinks. A decade has not lessened the odor.
- We filed an amicus brief in Kelo explaining why economic development wasn't enough to support New London's taking of a perfectly good home, and we still think we're right.
- Many states and local jurisdictions reacted and adopted legislative reforms. Some helpful, many not. Guess which state did nothing, despite several proposals made over several legislative sessions? Hawaii, where we say we like the little guy, but in reality we love government power.
- Not all doom and gloom locally, however: the Hawaii Supreme Court, ironically relying on language in Kelo, held in a case in which we represented the property owner that a condemnor cannot merely rely on its own claim of public use, and that "although our courts afford substantial deference to the government's asserted public purpose for a taking in a condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner's defense of pretext." County of Hawaii v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008).
- So thank you, Suzette Kelo and IJ for taking up the fight: the first two posts on this blog were about the decision (see "Eminent Domain: The Offer You Can't Refuse," and "Kelo Exposes Deeper Problems With Eminent Domain"), and writing those convinced me to keep blogging.
- In the next few days we'll post up some of the more interesting items we have gathered on the Kelo anniversary, but in the meantime if you want the one-stop-shop, buy this book: lawprof Ilya Somin's "The Grasping Hand: Kelo v. City of New London and The Limits of Eminent Domain. We're reading it now and will have a review when we're done. But man, it's good.
- Finally, one of these days, the Supreme Court is going to take up another Public Use Clause case. We tried to convince them that one of our cases was The One (cert petition here), but to no avail. But we'll collectively keep on trying, and one day we'll have happy news to report.
