凯洛诉新伦敦市案--有偿征收 （Kelo vs. The City of New London on Eminent Domain）

http://zh.wikipedia.org/wiki/%E5%87%AF%E6%B4%9B%E8%AF%89%E6%96%B0%E4%BC%A6%E6%95%A6%E5%B8%82%E6%A1%88

凯洛诉新伦敦市案（Susette Kelo, et al. v. City of New London, et al.）是美国联邦最高法院判决的一起关于政府是否可以经济发展为理由征用私有财产并转移到另一个私有实体。原告凯洛为被征地的居民代表，被告则是康涅狄格州新伦敦市市政当局。2005年6月23日，美国联邦最高法院对这起案子所作的最新判决引来了各方广泛关注。这起涉及土地“有偿征收”的案子，按照美高院最新判决，地方市政当局有权强行征收私有土地用于商业开发——只要这种开发属于“公共使用”范畴。高院裁定“该市对于被征地的规划部署合乎‘公共使用’，且在‘第五条修正案’条款的含义之内。”。因此，此案同时也引发了关于“第五条修正案”该怎么实现、怎么解释、怎么运用的新一轮讨论。

目录 [隐藏]
1 前因
2 案情
2.1 开发计划
2.2 向州法院控告市政当局
2.3 上诉联邦最高法院
2.4 口头辩论
3 判决
3.1 判决意见
3.2 反对意见
4 后续发展
4.1 国会的反应


[编辑] 前因
这起案子因康涅狄格州最高法院支持被告新伦敦市市政当局，而被原告上诉到联邦最高法院。康涅狄格州最高法院裁定因经济开发而对土地的强制征用（本案的核心焦点）不违反州和联邦宪法关于“公共使用”的条款(私有财产不得未经合理赔偿挪为公用)。州高院认为只要经济开发项目能提供就业机会、增加税收、增加市政收入、有利于凋敝小城经济复苏，那么它就符合“公共使用”的要求。它还认为，只要私有企业起着合法的政府全权代理人的作用，那么市政当局把“征用权”委托给私有企业也是不违背宪法的。

联邦最高法院批准了上诉请求，同意对1954年Berman诉Parker案以来产生的新问题重新进行考量。在Berman一案里，政府为铲除贫民窟和枯萎旧城区而动用了征用权，即使第五条修正案也未能保护土地所有者不失去土地。但凯洛案有所不同，在这起案子里，市政当局动用征用权是出于复苏当地经济的目的，那么，第五条修正案能否保护这些土地所有者呢？

[编辑] 案情
[编辑] 开发计划
新伦敦市是美国东北部康涅狄格州一座小城市。在过去二十年里，小城经济状况一直不好，财政税收和城市人口持续下降，市府推行的一些经济开发计划也一直未见奏效。1998年,全球著名大制药商辉瑞公司在新伦敦市附近建了座研发中心。看到机会来了，新伦敦市市政府授权市政府控制下的一家私有实体——新伦敦市开发公司——对城边一块地重新进行规划，希望在辉瑞公司的牵头下，实现更多招商引资计划。

整个规划包括要建一座酒店和一个会议中心、一个州立公园、80–100幢新民居和其他一些商用楼等。开发计划把这一地区划分为六块用地，除1号地（用于建酒店和会议中心）外，其他五块地并没有在计划中详细列定具体的用处。2000年，市府批准了开发计划，把地批给了开发公司。

这片地共计90英亩大小，115户居民和商家。开发公司打算出价把它们全买下来，但其中15户不肯卖。15户中的九户即本案原告，凯洛是他们的代表，她在这片开发用地上有所小房子。

结果，新伦敦市市政府决定动用“征用权”。市政当局命令开发公司（私有实体）充任市府合法指定代理，强行征收15家“钉子户”的地产。

[编辑] 向州法院控告市政当局
于是，业主把市政当局告上了康涅狄格州法院，控告市政府滥用“征用权”。这些居民的控告依据，是美国宪法第五和第十四条修正案。美国宪法第五条修正案规定，“不给予公正赔偿，私有财产不得充作公用”。虽然宪法正文没有述及征用权，但第五条修正案在对征用权加以限制性规定的同时肯定了它的存在。其限制在于：（1）这一权力的行使必须是为了“公用”；（2）私有土地被征后要有“公正赔偿”。凯洛和其他上诉人上告的理由即他们认为开发公司所陈述的经济开发目的，与“公用”不符。

[编辑] 上诉联邦最高法院
这是美国联邦最高法院自1984年以来接手的首例征用案。近二十年来，美国各州和市政府不断在扩大“征用权”，而且常常是出于发展经济的目的。除了“经济发展”属否“公用”之辩外，凯洛案另有一个情况，那就是至少在表面上，负责规划土地的开发公司是一家私有实体；因此，原告争辩说，政府把私有土地从一个个人或公司手里夺走，再转给另一个私人，而仅仅因为后者能使这块地产出更高的赋税收入，这是违背美国宪政精神的。

凯洛案是自Midkiff案以来上诉到美高院的第一宗“有偿征用”案，因此，凯洛立刻成了各方大讨论的焦点，原告和被告两边都吸引了为数众多的支持者。在这起案子里，有40份中立观察方的书面意见被归入卷宗，其中25份支持原告。凯洛的支持者有大法官自由论者协会、美国有色人种协进会、美国退休者协会和由马丁·路德·金创始的南方基督教领导会议等(NAACP/AARP/SCLS)。后三个团体还联名签署了一份书面意见，抗议“有偿征用”经常被用来对付一些政治上的弱势群体，尤其是少数族群和老年人。

[编辑] 口头辩论
这起案子于2005年2月22日在美高院进行口头辩论,辩论会由大法官Sandra Day O'Connor主持。由于首席大法官威廉·伦奎斯特因病休养在家，大法官John Paul Stevens未能从佛罗里达及时赶回华盛顿，因此，这一天的口头辩论只有7位大法官听证。两位缺席的大法官事后通过阅读简报和口头辩论笔录，参与了本案的判决。

在口头辩论期间，有几位大法官所提的问题，已经预示出他们对本案所持的最终立场。例如，大法官Scalia认为支持市政当局将破坏“私用和公用之间的差别”，他声称，仅仅附带性地为州政府带来利益的私用，“不足以证明动用征用权是正当的。”

[编辑] 判决
[编辑] 判决意见
2005年6月23日，最高法院以5比4的微弱多数，对本案作出判决，支持新伦敦市 市政府。组成多数方的五位大法官分别是John Paul Stevens、Anthony Kennedy、David Souter、Stephen Breyer 和 Ruth Bader Ginsburg。判决意见由大法官John Paul Stevens执笔。另外，大法官Kennedy也同时出具一份配合意见，更详细地补充说明了对经济开发的司法审查标准。Stevens在意见书中称，在有关土地使用的决议里，应给予当地政府较宽的自由裁量权：“该市确已非常仔细地制定了开发计划，相信能给社区带来可评估的利益，这个利益包括，但不局限于，提供就业机会和增加税收”。

[编辑] 反对意见
四位持反对意见者分别是首席大法官威廉·伦奎斯特、大法官Sandra Day O'Connor、Antonin Scalia 和 Clarence Thomas。大法官Sandra Day O'Connor主写了反方意见，她认为以反罗宾汉的方式——劫贫济富——动用该项权力，后果不是下不为例，而是相反：“现在，任何私有财产都有可能因另一私方利益而被拿走，这个判决的后续效应将不是偶发事件, 受益者很可能是那些拥有不对等（比诸受害者）政治影响和权力的公民，比如大公司和大开发商等”。她论争说，这一判决模糊了“财产在私用和公用之间的区别——这等于是在把‘为了公共使用”这些字眼从第五条修正案的条款里有效地【剔除】”。

大法官Clarence Thomas也单独写了一份原意主义的反对意见，他说，这份判决所援引的依据是有缺陷的，而且“这个判决在对宪法的解释上犯了很严重的错误”。他谴责多数方把第五条修正案里的“公共使用”替换成了在意义上有着很大差别的“公共目的”：“正是这种措词上的变换，使得法庭认为，尽管这是违反常识的，一个投入巨资的城市重建项目（陈述的开发目的含糊地承诺将带来新的就业机会和增加税收，但同时也是辉瑞公司所喜见的），属于‘公共使用’”。Thomas还援引了NAACP/AARP/SCLS合作代表三种低收入阶层反对新泽西重建时所写的一份报告里的话：“损失将不成比例地落在弱势群体身上。”

[编辑] 后续发展
判决出来后，有多位原告表示他们将进一步寻求其他手段，继续抗议对他们家园的攫夺。然而，在高院作出判决后，凯洛和其他几位居民剩下的唯一合法途径只可能是在市政府赔付时，力争一个公平的要价——该市已准备花160万美元收购15户的地产，有关官员之后宣布了将征收的土地租回5年的计划。最终市政府同意将凯洛的房子移到市中心，并且支付了数额巨大的赔偿[1]。

由于招商引资失败，凯洛案判决两年之后，市政府征用的土地上并未进行任何开发。2009年11月，在征收规划重镇局重要角色的辉瑞公司宣布关闭在新伦敦市的研发中心[2]。

凯洛案已经尘埃落定，然而它所造成的广泛影响仍能继续看到。在判决之前，美国有八个州（阿肯色州, 佛罗里达州, 伊利诺斯州, 肯塔基州, 缅因州, 蒙大拿州, 南卡罗莱纳州和华盛顿州）明确禁止以发展经济为由（清除‘枯萎’城区例外）使用“征用权”。截至2007年，美国50州中的42州通过了法律来对以经济发展为目的的土地征用进行限制，其中21州明确禁止了类似凯洛案判决的财产征用。2005年7月4日，华盛顿时代周刊声称，这一判决已经激励了纽泽西州Newark和 密苏里州Arnold两地的官员有所行动。一份对超过1万起依其申述为“滥用”征用权的个案进行研究的报告证实，正如反方意见所预言的，低收入少数族群将最有可能领教凯洛案里所显示出来的权力，其他可能受影响的还包括住在码头区或旧城区等的中下阶层居民。

[编辑] 国会的反应
2005年6月27日，得克萨斯州参议员John Cornyn (R-TX)动议通过立法(S.B. 1313)限制以发展经济为由行使征用权，他建议：(1)若证明“公用”的理由仅止发展经济这一项，则应禁止联邦政府行使征用权；(2)对州和地方政府“使用联邦基金”行使征用权时应强行施加同样的限制。议案随后由众议院议员Dennis Rehberg (R-MO)、Tom DeLay (R-TX)、John Conyers (D-MI) 和 James Sensenbrenner (R-WI)提交美国众议院。由于大多数小规模的有偿征收（比如凯洛案中的那些），其决议和资金运作完全由当地政府掌控，因此即使议案得以通过成为法律，也不清楚将能产生多大的作用。此提案于2005年6月27日被提交参议院法务委员会讨论。

美国众议院少数党领袖南希·佩洛西认为议案本身有违政权分离原则，而且将会要求对第五条修正案再次进行修改。她对判决本身没有发表意见。

http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London

Kelo v. City of New London, 545 U.S. 469 (2005)[1] was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another to further economic development. The case arose from the condemnation by New London, Connecticut, of privately owned real property so that it could be used as part of a comprehensive redevelopment plan. The Court held in a 5–4 decision that the general benefits a community enjoyed from economic growth qualified such redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment.

Contents [hide]
1 History
2 The case
2.1 The case in the Connecticut courts
2.2 Certiorari to the U.S. Supreme Court
2.3 Oral argument
3 The Court's decision
3.1 Majority and concurring opinions
3.2 Dissenting opinions
4 Subsequent history
5 Public reaction and the wider effect of Kelo
5.1 Public reaction
5.2 Presidential reaction
5.3 Congressional reaction
5.4 Scholarly Reaction
5.5 State legislation following Kelo v. City of New London
5.5.1 Arizona
5.5.2 New Hampshire
5.5.3 California
5.5.4 Florida
5.5.5 Iowa
5.5.6 Ohio
5.5.7 Michigan
5.5.8 Wisconsin
6 See also
7 References
8 Further reading
9 External links


[edit] History
The case was appealed from a decision by the Supreme Court of Connecticut in favor of the City of New London. The state supreme court held that the use of eminent domain for economic development did not violate the public use clauses of the state and federal constitutions. The court held that if an economic project creates new jobs, increases tax and other city revenues, and revitalizes a depressed urban area (even if not blighted), then the project qualifies as a public use. The court also ruled constitutional the government delegation of its eminent domain power to a private entity.

The United States Supreme Court granted certiorari to consider questions raised in Berman v. Parker, 348 U.S. 26 (1954) and later in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).[2] Namely, whether a "public purpose" constitutes a "public use" for purposes of the Fifth Amendment's Taking Clause: "nor shall private property be taken for public use, without just compensation". Specifically, does the Fifth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment (see main article: Incorporation of the Bill of Rights), protect landowners from takings for economic development, rather than, as in Berman, for the elimination of slums and blight?

The decision was widely criticized.[3] Many of the public viewed the outcome as a gross violation of property rights and as a misinterpretation of the Fifth Amendment, the consequence of which would be to benefit large corporations at the expense of individual homeowners and local communities. Some in the legal profession construe the public's outrage as being directed not at the interpretation of legal principles involved in the case, but at the broad moral principles of the general outcome.[4] "Federal appeals court judge Richard Posner wrote that the political response to Kelo is "evidence of [the decision's] pragmatic soundness." Judicial action would be unnecessary, Posner suggested, because the political process could take care of the problem."[5][6]

In November 2009, Pfizer, the beneficiary of the eminent domain action, announced that it would leave New London.[7]

[edit] The case
[edit] The case in the Connecticut courts
The owners sued the city in Connecticut courts, arguing that the city had misused its eminent domain power. The power of eminent domain is limited by the Fifth and Fourteenth Amendments to the United States Constitution. The Fifth Amendment, which restricts the actions of the federal government, says in part that "private property [shall not] be taken for public use, without just compensation"; under Section 1 of the Fourteenth Amendment, this limitation is also imposed on the actions of U.S. state and local governments. Kelo and the other appellants argued that economic development, the stated purpose of the taking and subsequent transfer of the land to the New London Development Corporation, did not qualify as public use. The Connecticut Supreme Court heard arguments on Dec. 2, 2002. The state court issued its decision (268 Conn. 1, SC16742) on March 9, 2004, siding with the city in a 4-3 decision, with the majority opinion authored by Justice Flemming L. Norcott, Jr., joined by Justices David M. Borden, Richard N. Palmer and Christine Vertefeuille[8]. Justice Peter T. Zarella wrote the dissent, joined by Chief Justice William J. Sullivan and Justice Joette Katz[9].

[edit] Certiorari to the U.S. Supreme Court
This case was the first major eminent domain case heard at the Supreme Court since 1984. In that time, states and municipalities had slowly extended their use of eminent domain, frequently to include economic development purposes where applicable. In the Kelo case, there was an additional twist in that the development corporation was ostensibly a private entity; thus the plaintiffs argued that it was not constitutional for the government to take private property from one individual or corporation and give it to another, if the government was simply doing so because the repossession would put the property to a use that would generate higher tax revenue.

The first eminent domain case since Midkiff to reach the Supreme Court, Kelo became the focus of vigorous discussion and attracted numerous supporters on both sides. Some 40 amicus curiae briefs were filed in the case, 25 on behalf of the petitioners. Suzette Kelo's supporters ranged from the libertarian Institute for Justice (the lead lawyers) to the NAACP, AARP, the late Martin Luther King's Southern Christian Leadership Conference and South Jersey Legal Services. The latter groups signed an amicus brief arguing that eminent domain has often been used against politically weak communities with high concentrations of minorities and elderly.

[edit] Oral argument
The case was argued on February 22, 2005. The case was heard by only seven members of the court with Associate Justice Sandra Day O'Connor presiding, as Chief Justice William Rehnquist was recuperating from medical treatment at home and Associate Justice John Paul Stevens was delayed on his return to Washington from Florida; both absent Justices read the briefs and oral argument transcripts and participated in the case decision.

During oral arguments, several of the Justices asked questions that forecast their ultimate positions on the case. Justice Antonin Scalia, for example, suggested that a ruling in favor of the city would destroy "the distinction between private use and public use," asserting that a private use which provided merely incidental benefits to the state was "not enough to justify use of the condemnation power."

[edit] The Court's decision
[edit] Majority and concurring opinions
On June 23, 2005, the Supreme Court, in a 5–4 decision, ruled in favor of the City of New London. Justice John Paul Stevens wrote the majority opinion, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Kennedy wrote a concurring opinion setting out a more detailed standard for judicial review of economic development takings than that found in Stevens's majority opinion. In so doing, Justice Kennedy contributed to the Court's trend of turning minimum scrutiny—the idea that government policy need only bear a rational relation to a legitimate government purpose—into a fact-based test.

In Hawaii Housing Authority v. Midkiff, 467 US 229 (1984), the Court had said that the government purpose under minimum scrutiny need only be "conceivable." In two 1996 cases the Court clarified that concept. In Romer v. Evans, 517 US 620, the Court said that the government purpose must be "independent and legitimate." And in U.S. v. Virginia, 518 U.S. 515, the Court said the government purpose "must be genuine, not hypothesized or invented post hoc in response to litigation." Thus, the Court made it clear that, in the scrutiny regime established in West Coast Hotel v. Parrish, 300 US 379 (1937), government purpose is a question of fact for the trier of fact.

Kennedy fleshed out this doctrine in his Kelo concurring opinion; he sets out a program of civil discovery in the context of a challenge to an assertion of government purpose. However, he does not explicitly limit these criteria to eminent domain, nor to minimum scrutiny, suggesting that they may be generalized to all health and welfare regulation in the scrutiny regime. Because Kennedy signed on to the Court's majority opinion, his concurrence is not binding on lower courts. He wrote:

A court confronted with a plausible accusation of impermissible favoritism to private parties should [conduct]….a careful and extensive inquiry into ‘whether, in fact, the development plan [chronology] [1.] is of primary benefit to . . . the developer…, and private businesses which may eventually locate in the plan area…, [2.] and in that regard, only of incidental benefit to the city…[.]’" Kennedy is also interested in facts of the chronology which show, with respect to government, [3.] awareness of…depressed economic condition and evidence corroborating the validity of this concern…, [4.] the substantial commitment of public funds…before most of the private beneficiaries were known…, [5.] evidence that [government] reviewed a variety of development plans…[,] [6.] [government] chose a private developer from a group of applicants rather than picking out a particular transferee beforehand and… [7.] other private beneficiaries of the project [were]…unknown [to government] because the…space proposed to be built [had] not yet been rented….

Kelo v. City of New London did not establish entirely new law concerning eminent domain. Although the decision was controversial, it was not the first time “public use” had been interpreted by the Supreme Court as “public purpose.” In the majority opinion, Justice Stevens wrote the "Court long ago rejected any literal requirement that condemned property be put into use for the general public" (545 U.S. 469). Thus precedent played an important role in the 5-4 decision of the Supreme Court. The Fifth Amendment was interpreted the same way as in Midkiff (467 U.S. 229) and other earlier eminent domain cases.

[edit] Dissenting opinions
On June 25, 2005, Justice Sandra Day O'Connor wrote the principal dissent, joined by Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas. The dissenting opinion suggested that the use of this taking power in a reverse Robin Hood fashion— take from the poor, give to the rich— would become the norm, not the exception:

“ Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. ”

She argued that the decision eliminates "any distinction between private and public use of property — and thereby effectively delete[s] the words 'for public use' from the Takings Clause of the Fifth Amendment." 125 S.Ct. 2655, 2671

Clarence Thomas also penned a separate originalist dissent, in which he argued that the precedents the court's decision relied upon were flawed and that "something has gone seriously awry with this Court's interpretation of the Constitution." He accuses the majority of replacing the Fifth Amendment's "Public Use" clause with a very different "public purpose" test:

“ This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.' ”

Thomas also made use of the argument presented in the NAACP/AARP/SCLC/SJLS amicus brief on behalf of three low-income residents' groups fighting redevelopment in New Jersey, noting:

“ 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. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.[10] ”

[edit] Subsequent history

One of the few remaining houses in the Fort Trumbull neighborhood, September 1, 2006. Underneath the white paint can just barely be read the words "Thank you Gov. Rell for your support" and the web URLs of two organizations protesting over-use of eminent domain, Castle Coalition and Institute for Justice.

The same house, June 10, 2007. The "thank you" is still visible, but the some windows are broken and others are boarded up, and "No Trespassing" has been spray-painted on it, as well as the URLs being obscured by spray paint.
Following the decision, many of the plaintiffs expressed an intent to find other means by which they could continue contesting the seizure of their homes.[11] Soon after the decision, city officials announced plans to charge the residents of the homes for back rent for the five years since condemnation procedures began. The city contends that the residents have been on city property for those five years and owe tens of thousands of dollars of rent. The case was finally resolved when the City agreed to move Kelo's house to a new location. The controversy was eventually settled when the city paid substantial additional compensation to the homeowners.[12] Three years after the Supreme Court case was decided, the Kelo house was dedicated after being relocated to a site close to downtown New London.[13] As of September 2009[update], the original Kelo property is now a vacant lot, generating no tax revenue for the city.[14] A group of New London residents formed a local political party, One New London, to combat the takings. While unsuccessful in gaining control of the New London City Council, they gained two seats and continue to try to gain a majority in the New London City Council to rectify the Ft. Trumbull takings. In June 2006 Governor M. Jodi Rell intervened with New London city officials, proposing the homeowners involved in the suit be deeded property in the Fort Trumbull neighborhood so they may retain their homes.[15] But two years after the Supreme Court decision nothing is happening on the ground and it appears doubtful whether the city's redevelopment project will proceed.

In September 2009, the land where Susette Kelo's home had once stood was an empty lot, and the promised 3,169 new jobs and $1.2 million a year in tax revenues had not materialized.[14] In November 2009, Pfizer announced it would close its New London research facility.[16]

After the Pfizer announcement, the San Francisco Chronicle in its lead editorial called the Kelo decision infamous:

The well-laid plans of redevelopers, however, did not pan out. The land where Suzette Kelo's little pink house once stood remains undeveloped. The proposed hotel-retail-condo "urban village" has not been built. And earlier this month, Pfizer Inc. announced that it is closing the $350 million research center in New London that was the anchor for the New London redevelopment plan, and will be relocating some 1,500 jobs.[17]

The Chronicle editorial quoted from the New York Times:

"They stole our home for economic development," ousted homeowner Michael Cristofaro told the New York Times. "It was all for Pfizer, and now they get up and walk away."

[edit] Public reaction and the wider effect of Kelo
Public reaction to the decision was not favorable and, as a result, many states changed their eminent domain laws. Prior to the Kelo decision, only eight states specifically prohibited the use of eminent domain for economic development except to eliminate blight. Since the decision, forty-three states have amended their eminent domain laws.[18]

[edit] Public reaction
Opposition to the ruling was stated by popular groups such as AARP, the NAACP, the Libertarian Party and the Institute for Justice. Many owners of family farms also disapproved of the ruling, as they saw it as an avenue by which cities could seize their land for private developments. The grassroots lobbying group American Conservative Union and The New Media Journal described the decision as judicial activism, as did numerous blogs.[19][20]

The New York Times editorial board agreed with the ruling, calling it "a welcome vindication of cities' ability to act in the public interest."[21] The Washington Post's editorial board also agreed with the ruling, writing, "... the court's decision was correct... New London's plan, whatever its flaws, is intended to help develop a city that has been in economic decline for many years."[22]

[edit] Presidential reaction
On June 23, 2006, the first anniversary of the original decision, President George W. Bush issued an executive order[23] instructing the federal government to use eminent domain

“ ...for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.[24] ”

However, since eminent domain is often exercised by local and state governments, the presidential order may thus have little overall effect.

[edit] Congressional reaction
On June 27, 2005, Senator John Cornyn (R-TX) introduced legislation, the "Protection of Homes, Small Businesses and Private Property Act of 2005" (S.B. 1313), to limit the use of eminent domain for economic development. The operative language

prohibits the federal government from exercising eminent domain power if the only justifying "public use" is economic development; and
imposes the same limit on state and local government exercise of eminent domain power "through the use of Federal funds."
Similar bills have subsequently been put forth in the House of Representatives by Congressman Dennis Rehberg (R-MT), Tom DeLay (R-TX) and John Conyers (D-MI) with James Sensenbrenner (R-WI). As some small-scale eminent domain condemnations (including notably those in the Kelo case) can be local in both decision and funding, it is unclear how much of an effect the bill would have if it passed into law.[25]

[edit] Scholarly Reaction
In 2008, land use Professor Daniel R. Mandelker argued that the public backlash against Kelo is rooted in the historical deficiencies of urban renewal legislation.[26] In particular, the article cited the failure to incorporate land use planning and a precise definition of blight in urban renewal legislation as problematic. In 2009, Professor Edward J. Lopez of San Jose State University studied passed laws and found that states with more economic freedom, greater value of new housing construction, and less racial and income inequality were more likely to have enacted stronger restrictions sooner.[27]

[edit] State legislation following Kelo v. City of New London
Prior to Kelo only eight states specifically prohibited the use of eminent domain for economic development except to eliminate blight: Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington.[28] By July 2007, 42 states had enacted some type of reform legislation in response to the Kelo decision. Of those 42 states, 21 enacted laws that severely inhibited the takings allowed by the Kelo decision, while the rest enacted laws that place some limits on the power of municipalities to invoke eminent domain for economic development. The remaining eight states have not passed laws to limit the power of eminent domain for economic development.[27][29]

[edit] Arizona
Proposition 207, the Private Property Rights Protection Act, passed in 2006.

[edit] New Hampshire
Subsequent to this decision, there was widespread outrage across the country. California developer and libertarian Logan Darrow Clements scooped a similar proposal by New Hampshire libertarians to seize Justice Souter's 'blighted' home in Weare, New Hampshire, via eminent domain in order to build a "Lost Liberty Hotel" which he said would feature a "Just Desserts Cafe". Officials of the Libertarian Party of New Hampshire (LPNH) and the Coalition of New Hampshire Taxpayers had been eyeing the Justice's property to build a Constitution Park. A few weeks later, LPNH Vice-Chair Mike Lorrey discovered that Justice Breyer owned an extensive vacation estate in Plainfield, NH, and announced on the New Hampshire Public Radio show The Exchange focusing on eminent domain that LPNH would be pursuing their Constitution Park concept with Breyer's property in mind. Lorrey and Clements both advocated an amendment to New Hampshire's Constitution limiting eminent domain, which passed New Hampshire's legislature on March 24, 2006. The text of the amendment is as follows: "No part of a person's property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property."[30] It passed by an overwhelming margin in the 2006 general election.[31]

[edit] California
Proposition 90 failed in the November 2006 election.[32] The initiative also included language requiring that government pay financial compensation to any property owners who could successfully argue that regulation caused them significant economic loss. Subsequently, Proposition 99 passed in the June 2008 election. It amends the state constitution to prohibit (subject to some exceptions):

“ state and local governments from using eminent domain to acquire an owner-occupied residence [if the owner has occupied the residence for at least one year], as defined, for conveyance to a private person or business entity. ”

[edit] Florida
Florida passed a 2006 ballot measure amending the Florida Constitution to restrict use of eminent domain.[33] The amendment says in part:

“ Private property taken by eminent domain [...] may not be conveyed to a natural person or private entity except as provided by general law passed by a three-fifths vote of the membership of each house of the Legislature. ”

[edit] Iowa
The Iowa Legislature passed a 2006 bill restricting the use of eminent domain for economic development. Gov. Tom Vilsack (D) vetoed the bill,[34] prompting the first special session of the Iowa Legislature in more than 40 years. The veto was overridden by votes of 90-8 in the Iowa House and 41-8 in the Iowa Senate.[35]

[edit] Ohio
An attempted use of eminent domain was brought before the Ohio supreme court in Norwood, Ohio v. Horney. The Supreme Court of Ohio held in favor of the property owners.

[edit] Michigan
Michigan passed a restriction on the use of eminent domain in November 2006, Proposition 4, 80% to 20%.[36] The text of the ballot initiative was as follows:[37]

A proposed constitutional amendment to prohibit government from taking private property by eminent domain for certain private purposes
The proposed constitutional amendment would:

Prohibit government from taking private property for transfer to another private individual or business for purposes of economic development or increasing tax revenue.
Provide that if an individual's principal residence is taken by government for public use, the individual must be paid at least 125% of property’s fair market value.
Require government that takes a private property to demonstrate that the taking is for a public use; if taken to eliminate blight, require a higher standard of proof to demonstrate that the taking of that property is for a public use.
Preserve existing rights of property owners.
[edit] Wisconsin
March 29, 2006 the governor signed into law 2005 Wisconsin Act 233, which prohibits condemnation of nonblighted property for transfer to a private entity. Nonblighted property is defined by a list of conditions that may make the property a detriment to the "public health, safety, or welfare." Two days earlier the governor signed into law 2005 Wisconsin Act 208, which creates procedures designed to protect property owners including public notice and public hearing requirements.[38]

The Wisconsin law has been criticized as one having little or no real protection for property owners because it provides protection against property condemnation for economic development but does allow property condemnation under a broadly defined description of blighted.[39][40]