Supreme Court Roundup; Justices Will Hear a Property Rights Case Contesting the Limits of Eminent Domain

Published: September 29, 2004, Wednesday
WASHINGTON, Sept. 28 -- The Supreme Court added an important property rights case to its docket on Tuesday, beating the calendar to fill in its schedule for the new term that begins Oct. 4, the traditional first Monday in October.

The case is an appeal by seven property owners in a neighborhood in New London, Conn., that the city has designated for economic development. The Connecticut Supreme Court upheld the city's right to exercise its power of eminent domain to take the parcels, pay compensation to the owners and turn the land over to a private developer.

While eminent domain in the past was generally limited to government projects, like roads or public buildings, or to what used to be known as slum clearance, local governments are increasingly finding it convenient to use eminent domain to clear land for private development that will enhance the tax base.

New London's plans for the 90-acre neighborhood of small homes include a waterfront hotel and conference center, office space for high technology research and development, retail space and 80 new homes. The city has offered the property to a private developer under a 99-year lease at $1 a year. The property owners rejected the city's offer of compensation and filed a lawsuit to block the plan.

The question for the Supreme Court in Kelo v. City of New London, No. 04-108, is whether private development of this sort amounts to the kind of public use for which eminent domain is authorized by the Constitution. The so-called Takings Clause of the Fifth Amendment provides: ''nor shall private property be taken for public use without just compensation.''

Dana Berliner, a senior attorney with the Institute for Justice, a public interest law firm with a libertarian orientation that is representing the New London homeowners, said in an interview that the case had ''nationwide implications that will define eminent domain and public-use law for decades to come.''

''The framers put 'public use' in the Constitution for a reason,'' Ms. Berliner said. ''A private corporation making a profit is not a public use. Developers should purchase private property voluntarily like the rest of us.''

Wesley Horton, the lawyer representing New London, said that ''the economic revitalization of New London is a valid public use,'' as the Connecticut Supreme Court found in its 4-to-3 decision last spring. In a statement issued by his law firm, Horton, Shields & Knox, of Hartford, Mr. Horton said New London's plan was ''motivated entirely by concern for the economic welfare of New London and its citizens.'' The city has been declining for years and has been designated a ''distressed municipality'' by Connecticut's Office of Planning and Management.

Although the case clearly caught the justices' attention sufficiently to induce them to select it from among the roughly 1,000 new appeals that accumulated over the summer recess, it is not clear how the court will decide it. The Supreme Court has traditionally been quite deferential toward the government's use of eminent domain. The case, which the court will hear in January, is likely to attract a large number of briefs and to spark a lively debate over whether New London's economic development proposal is different in kind from the uses the court has authorized for eminent domain in the past.

In other action on Tuesday, the court announced a step toward increased transparency in the official record of its arguments. For the first time, the argument transcripts will identify the justices asking questions, rather than simply using the word ''Question.'' The court's press office said the change was made ''in the interest of accuracy and completeness.'' Transcripts are available on the court's Web site,, about two weeks after each argument.

Published: 09 - 29 - 2004 , Late Edition - Final , Section A , Column 4 , Page 21