Eminent domain

Listen to this article

Few decisions of the U.S. Supreme Court have proven as controversial as Kelo
vs. City of New London, Conn., decided on June 23 of last year. The court upheld
the city’s authority to use the eminent domain power to take the houses of several
New London residents in order to assemble land for a large urban redevelopment
project that would include apartments, shopping and office space. The court’s
decision wasn’t unexpected; it largely tracked a decision made by the same court
51 years earlier.

As in other eminent domain cases, the homeowners in Kelo
are, of course, entitled to be paid the fair value of their houses; that right
has never been questioned, and the courts have always enforced it. Nevertheless,
many people are uncomfortable with the notion that an individual could be forced
to sell his or her house to advance the economic growth and development of the
city at large.

The Missouri Farm Bureau has been a vigorous critic of the
Kelo decision. According to a telephone survey conducted by a firm hired by the
bureau, 83 percent of the citizens contacted were opposed to use of the eminent
domain power to acquire land for private economic development such as a shopping
mall, office park or housing complex.

All wrong

Maybe. And maybe
changes are needed to tighten up the eminent domain process and prevent abuses.
But the Farm Bureau’s recent ads criticizing the Supreme Court have it all wrong.

In the Kelo decision, the Supreme Court didn’t take anyone’s land; it simply
allowed the elected officials of the city to take the actions they decided were
in the city’s best interest. Every aspect of eminent domain is entirely within
the control of the state legislature in each individual state. No city, county
or redevelopment agency in Missouri or any other state can use the power except
in accordance with procedures set out by the legislature.

Despite the criticisms
of the U.S. Supreme Court, it was simply giving free reign to the democratic process
and the decisions of elected officials. The Missouri Supreme Court has done exactly
the same thing. As the court put it in 1991, “a legislative finding that a blighted
or insanitary area exists and that the legislative agency proposes to take the
property therein under the processes of eminent domain for the purpose of clearance
and improvement and subsequent sale will be accepted by the courts as conclusive
evidence that the contemplated use thereof is public, unless it further appears
upon allegation and clear proof that the legislative finding was arbitrary or
was induced by fraud, collusion or bad faith.”

Courts never become involved
in the eminent domain process unless someone challenges the decisions already
made by state and local legislative bodies. If there is no challenge, there is
no court case. And if there is a challenge, the courts have an obligation to apply
the law adopted by the legislative branch.

To blame the courts for the
current controversy over eminent domain is to ignore the true source of both the
problems and solutions. It removes the spotlight from where it belongs: the legislature
that designed and passed the eminent domain law.

Legislative intent

That’s
exactly what the democratic process is all about. The courts, as conservatives
famously point out, should not be creating new law but simply applying the law
created by the legislative branch of government. In effect, the U.S. Supreme Court
did exactly what its strongest critics want it to do – defer to the legislative
branch of government. And if the legislative process has gone awry, as many maintain
it has, there is plenty of public pressure to fix it – where the fix belongs,
in the legislature.

Last July, Missouri Gov. Matt Blunt created a task
force to study the state’s eminent domain laws and recommend needed changes. The
task force submitted its final report on Dec. 30, 2005. It does indeed recommend
a number of procedural changes to make eminent domain fairer to landowners and
to prevent the use of the power purely for “economic development, including an
increase in tax base, tax revenues, employment, or general economic health, standing
alone.”

At least a dozen bills have been filed in the 2006 session of the
Missouri General Assembly to modify the state’s eminent domain processes. At this
point, the outcome of the legislative process is anyone’s guess, but it seems
likely that changes will be made to curtail the more extreme uses of eminent domain
in Missouri, as well as to help landowners cope more effectively with government
demands for their property.

This is just as it should be. The issues are
complex, and there are strong arguments on both sides of the controversy. The
legislature is precisely the right place to resolve them. Criticizing the courts
for applying the existing law is akin to shooting the messenger because you don’t
like the message. The courts have, in good faith, tried to allow for the functioning
of the democratic process. When changes are needed, as they now may well be, it
is the democratic process, worked out by our elected representatives, that should
implement them.

Dale A. Whitman is a professor of law at the University
of Missouri-Columbia.