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"Ain't that America?"

Part One: A new film takes on an old debate

Everyone knows that the government can, in certain circumstances, take their property for a public purpose such as a highway, school or other governmental project. In Louisiana, we call this "expropriation"; in other states, it's called "eminent domain" or "condemnation". But, have you ever wondered whether the government can take your property against your will and give it to another private person or company? On April 15, 2018, an independent film called "Little Pink House" debuted in New London, Connecticut and addressed that very question head-on. The story is about Susette Kelo, an Emergency Medical Technician who, in 1997, scraped up just enough money to buy a little cottage in the city of New London, Connecticut with a waterfront view. She renovated the house herself and painted it pink. Seven months after she bought the house, however, she received a notice to vacate because the neighborhood was being condemned to make way for a high-end condominium and office building development designed to entice Pfizer Corp. to locate its headquarters in New London. Ms. Kelo fought the condemnation all the way to the U.S. Supreme Court but lost. Or did she?

The film does more than simply tell the tale of Ms. Kelo's unsuccessful struggle to keep her little pink house; it traces the arc of the nation's view towards eminent domain and examines the delicate balance between the need for the government to be able to take private property for public purposes and a citizen's constitutional right to own property. The story focuses on whether the government's right to take private property extends to takings for an indirect public benefit - here economic development and enhanced tax revenues - rather than a direct public use. Historically, the government could only take your property if it was needed for a "public use" - e.g., a road, school, or public hospital. Over time, however, governments, local and national, sought to expand the power to take private property for purposes not directly tied to public uses. This trend created legal friction between the government's right to take private property and citizens' right to own property, eventually reaching a flashpoint in the form of Ms. Kelo's unassuming little pink house.

The tale of Ms. Kelo's plight is not a new one. In 1954, the U.S. Supreme Court, in the case of Berman v. Parker, 348 U.S. 26, 32 (1954), upheld the taking of private property so that it could be included in a project under the management of a private, not public, agency and redeveloped for private, not public, use. The Court held that the government's desire to clear blight from the area was sufficient to qualify as a public purpose that supported a taking of the private property at issue, even though the property at issue was not, itself, blighted. The fact that a private interest would receive the property did not sway the Court, because it found that once Congress determined a public purpose for the taking, it was within Congress's discretion as to how such purpose should be carried out. Thirty years later, in Hawaii v. Midkiff, 467 U.S. 229 (1984), the U.S. Supreme Court reaffirmed Berman and held that a Hawaiian law which authorized the condemnation of private property for distribution to other private property owners was constitutional. The majority of the land in Hawaii at the time was owned by very few property owners, and the law at issue essentially authorized the government's use of eminent domain to seize and redistribute some of that property to other private individuals. Finding that the Hawaii Legislature had a public purpose in ordering the redistribution of land, the Supreme Court did not question the use of eminent domain to achieve that purpose. The Court held that eminent domain may be employed if "the exercise of the eminent domain power is rationally related to a conceivable public purpose." Id., 467 U.S. at 241 (emphasis added). It also noted it had "long ago rejected any literal requirement that condemned property be put into use for the general public." Id., 467 U.S. at 244. Of course, requiring only a "conceivable" public purpose to support the government's taking of private property sets a low bar to clear.

Inevitably, we come to Ms. Kelo's little pink house in New London, Connecticut.

As the new film explains, Mr. Kelo's neighborhood was not blighted, nor was her house. Her neighborhood was not in the path of any highway or the footprint of any public construction project. Instead, Ms. Kelo's neighborhood was identified as an ideal, waterfront location for upscale residences, a marina and office buildings that the city of New London wished to construct to serve as an enticement to Pfizer Corp. - a private, for-profit company - to locate in the city and help revitalize the area. The development was expected to remove blight, create jobs, and fill the city's tax coffers but was not going to be generally available for use by the public. Ms. Kelo claimed that her little pink house should not be taken based on a promise that tax revenues might increase if her house was given to a private developer. Ultimately, the U.S. Supreme Court sided with the city and held, based upon Berman and Midkiff, that a project that is expected to produce a public benefit - in this case, economic development - was sufficient under the state and federal constitutions to support a taking of private property, regardless whether the project would be publicly-owned or even used by the general public.

Ms. Kelo's little pink house was eventually torn down, and, three years after the U.S. Supreme Court decision, the lot where the house stood remained vacant, overrun by weeds, with only the back-porch steps overlooking the water remaining. The city-sponsored developer who was supposed to develop Ms. Kelo's neighborhood could not secure funding, the project fizzled, and the neighborhood lay fallow. Ms. Kelo may have lost her little pink house, but in her defeat, she inspired significant change in the way states view the use of eminent domain powers. As the film explains, soon after the decision in Kelo v. City of New London, 545 U.S. 469 (2005), 44 states enacted restrictions in their state constitutions to prevent the taking of private property for private or predominantly private purposes. Louisiana was among the first, if not the first, to adopt such restrictions. In the next segment of this blog, we examine the status of the law in Louisiana regarding the expropriation of private property by the government and the "Kelo effect" on that body of law.

Trailer: iam.ij.org/LPHtrailer and watch.LittlePinkHouseMovie.com.

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