Kelo v. City of New London

No. 04-108. Argued February 22, 2005. Decided June 23, 2005. Certiorari to the Supreme Court of Connecticut. Judgment affirmed (268 Connecticut 1, 843 Atlantic 2d 500, affirmed). Opinion of the Court by Justice Stevens, in which Justices Kennedy, Souter, Ginsburg, and Breyer joined. Justice Kennedy filed a concurring opinion. Justice O'Connor filed a dissenting opinion, in which Chief Justice Rehnquist and Justices Scalia and Thomas joined. Justice Thomas filed a dissenting opinion.

Editorial note. After decades of economic decline, New London approved a development plan for the Fort Trumbull area intended to create jobs, increase tax revenues, and capitalise on the construction of a nearby research facility. The plan contemplated a waterfront conference hotel, research and office space, a marina, and new residences, and it was to be carried out by a private nonprofit development corporation designated as the city's agent. The city authorised the acquisition of the required parcels by purchase or eminent domain. The petitioners owned fifteen properties in the area, some occupied as homes of long standing, and their properties were not themselves blighted or in poor condition.

Editorial note. The Superior Court granted a partial injunction against some of the takings. The Supreme Court of Connecticut held all of the takings valid under both the Federal and the State Constitution. The Supreme Court of the United States granted certiorari and affirmed.

Editorial note. The city's proposed use of the condemned land qualifies as a public use. The rule derived has three parts. First, the constitutional requirement is not literal use by the public, but a public purpose, and the Court has long rejected the narrower reading. Second, the fact that condemned property will be transferred to private parties does not defeat the public character of the taking, provided the transfer is a means of executing a public programme rather than a bare transfer of one owner's property to another. Third, the determination that a particular area is in need of economic rejuvenation, and the choice of means to accomplish it, are legislative judgments entitled to deference, and the plan is to be judged as a whole rather than parcel by parcel.

Editorial note. Justice Stevens relied on Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), as establishing both the breadth of the public purpose concept and the deference owed to the legislative body. He declined to adopt a rule requiring reasonable certainty that the expected benefits would materialise, or a rule excluding economic development as a category, and he emphasised that nothing in the opinion prevented a State from imposing stricter limits under its own law. Justice Kennedy, concurring, added that a taking would fail if the record showed that the plan's public benefits were incidental to a purpose of favouring a particular private party. Justice O'Connor, dissenting, argued that the majority effaced any distinction between private and public use and that the burden of such takings would fall on those with the least influence. Justice Thomas, dissenting separately, urged a return to the original understanding of 'public use' as actual use by the public.

Editorial note. Kelo settles the federal question and, in doing so, transfers the substantive control of eminent domain to the States. Its invitation to state-law limitation was accepted on an extraordinary scale: within a few years the great majority of States had enacted restrictions on condemnation for economic development, and several state supreme courts construed their own public-use clauses more strictly than the Federal Constitution requires. The treatise therefore presents Kelo as the boundary of federal doctrine and treats the operative law of public use as predominantly a matter of state constitutions and statutes.

Editorial note. Reaffirmed as federal law and repeatedly cited for the public purpose standard and for legislative deference. Its scope in practice has been narrowed by post-2005 state eminent domain reform legislation and by state constitutional decisions declining to follow it, a development the opinion itself expressly contemplated.

Editorial note. Read with U.S. Const. amend. V, and the treatise chapters on eminent domain and public use and on regulatory takings.