We just came across an interesting article in the April 2009 issue of the A.B.A. Journal — Steven Seidenberg, Where’s the Revolution? at p. 50. It’s not a law-review-style article, and though appearing in a legal publication, it is suitable for the lay reader. We recommend it.
The author concludes that the statutory revisions of eminent domain law, that were inspired by a widespread popular reaction to the Supreme Court’s wretched Kelo decision have materialized only to some extent, with other revisions more cosmetic than substantive. Which goes to show that Mr. Seidenberg, either hasn’t been in the condemnation game very long, or that he lacks perspective. To give you an idea of what things were like then, in the mid-1970s when we served as a consultant to the California Law Revision Commission charged with improving eminent domain law, those worthies wanted to expand the power to take and had to be curbed by the California Legislaure. Verily.
Moreover, in connection with editing Just Compensation, a monthly periodical on eminent domain and inverse condemnation law (click on the Just Compensation link), we have had to read every reported case of this kind at least since 1974 when we took over editing that publication which has been in print since 1957. In those not-so-good old days, cases challenging the right to take were so rare that we didn’t even have a section on that subject and we swept the rare right-to-take cases under the heading of Other Cases of Interest. Things were so bad that there were occasional cases where a property owner would plead a defense to the taking, only to have a judge dismiss it on the court’s own motion.
Then things started changing. By 1987 we had to add a Right to Take section to Just Compensation, to accommodate the trickle of right-to-take cases. Today, there are several such cases in every issue, and interestingly, the owners win a surprising number of them, usually on grounds other than lack of public use..
To make a long story short, the fact that the Kelo case produced such a vigorous split among the Justices was in itself quite significant. It made clear that some Justices at long last began to understand what informed and experienced practitioners knew all along — that however parsed, redevelopment and kindred cases were doctrinally justifiable by a need to rectify some sort of social evil, like slums in the Berman case, or the title misalocation in the Midkiff case. But (except for New York which in this regard has pretty much been the sub-basement, if not the sewer of the law, where an owner’s substantive challenge to the right to take is usually blown off in a one-page opinion), just taking from A to give to B for the latter’s monetary gain was not considered a “public use.” Until Kelo.
But even if you disagree with us and believe that Kelo represented nothing new doctrinally, it pushed the application of the law to a reductio ad absurdum extent and the people understood that at once. And so, Kelo inspired a popular push for reform. That such reform occurred at all was a cause for celebration, for the anti-Kelo forces were fighting a well entrenched and well financed lobbying machine. But what Kelo incontestably did accomplish was to educate the public and bring to its consciousness the fact that modern redevelopmemt has nothing to do with “slum clearance” and that the “blight” used in justification of redevelopment these days has in the hands of redevelopment agencies and their judicial groupies become so malleable that it can mean anything.
So the fact that progress has been made to the extent is has, that states have been curbing the taking power albeit not to the degree that would be desirable in the best of all possible worlds, that state courts have increasingly been saying “No!” to redevelopment agencies, are all signs of a change that would have been unthinkable 40 years ago. The people, by and large, are pissed off at redevelopers, their allies in city hall, and at judges who go along with such excesses. That the highest courts in some five states have recently declined to rubber stamp redevelopment is an encoraging sign in a field of law where encouragement is hard to come by.
Persevere!