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Ain't that America - Part II

Part Two: There are always two sides to the story

In the first segment of this blog we opened with the story of Ms. Susette Kelo and her little pink house, which was taken by the government and given to a private developer under the color of law. The film "Little Pink House" sheds light on the injustice of Ms. Kelo's situation, but it only views that situation through the lens of the property owner. Legitimate questions remain. For instance, doesn't it benefit the greater good for the government to be able to take private property if needed to provide essential services to the public? How else would hospitals, schools and roads get built if one property owner could hold out (by refusing to sell or by demanding an outrageous price) and kill the project? Perhaps it is more accurate to say that Ms. Kelo's story - like all stories - is not that simple. While, on the one hand, we can all identify with a single citizen's fight against the vast resources and sweeping authority of the government to keep her home from being condemned for the benefit of a private company. On the other hand, however, it is important to consider that public projects and projects that create significant public benefit are vital to the health and well-being of the community, even if part of the project will benefit private interests. Without expropriation authority, the government would be powerless to eradicate blight or build highways. The difficult question posed by Kelo is whether taking private property for the benefit of a private company (or other private individual) is appropriate if the taking will result in public benefit.

The U.S. Supreme Court in Kelo held that economic development was a sufficient public purpose to support the taking of Ms. Kelo's property but was careful to point out that states could adopt more stringent expropriation laws. Swiftly after the decision in Kelo, many states did just that and added restrictions to their state laws to prohibit what happened to Ms. Kelo's little pink house. In fact, Louisiana was one of the very first states to adopt restrictions against the taking of private property by the government to address the perceived faults in the Kelo decision. The post-Kelo changes to the Louisiana Constitution have made it clear that private property in Louisiana may not be taken by the government for "predominant use" by a private person or entity or for transfer of ownership to any private person or entity, even if such taking would create public benefits. See La. Const. art. I, ยง4(B)(1). Under this post-Kelo restriction, even were the government to retain ownership of private property that it had expropriated, if the purpose of the taking was to afford a private person the predominant use of that property, the taking would may be considered unlawful. In addition, the post-Kelo amendments specify the categories of uses that qualify as "public uses" for which private property may be expropriated and expressly prohibit the use of expropriation for economic development. These restrictions ushered in a new era in Louisiana expropriation law and erected guardrails around the types of projects for which the state can expropriate private property. But did the post-Kelo changes go too far? Were they a knee-jerk reaction to the perceived injustice of the result in Kelo rather than a thoroughly-considered change to the law and its ramifications?

There are many instances when the lines distinguishing a "predominantly public" purpose from a "predominantly private" purpose, or whether the purpose for a project is "economic development", are blurred. Take for example, an airport project - almost invariably a public project - in which private companies will be allowed to participate. Think of the gift shops in your local airport. One could argue that the government's taking of private property for the airport was, in part, to benefit the gift shops' bottom line - similar to how the taking of Ms. Kelo's little pink house would have benefitted Pfizer's bottom line. For another example, consider public-private partnerships. Such public-private partnerships involve both public and private entities. Should private property be expropriated for projects being developed by public-private partnerships? Although there will always be some debate about this, the fact remains that there are many public-private partnerships at the state and local level that produce significant public benefits. Without expropriation authority, many of the benefits that these public-private partnerships can provide to the community would simply not materialize.

As the Supreme Court in Kelo noted, the taking of one private person's property simply to benefit another private person would be unconstitutional; however, if a private property owner's property is taken as part of an overall redevelopment or other type of project producing public benefits - including economic development - then the fact that some of the private property is transferred to private interests won't render the use of eminent domain unconstitutional. See Kelo v. City of New London, 545 U.S. 469, 491 (2005), J. Kennedy concurring. In the end, the question is how to strike the proper balance between the citizens' right to own property and the government's need to provide for the health, safety and welfare of the public. While government's use of expropriation should be cautiously employed and its adherence to the law strictly scrutinized, the power to expropriate private property is vital to the government's ability to provide services to the public and improve the quality of life in the community. If, on balance, a project for which private property is taken benefits the public - and even though there will be some benefit to other private interests - the project should be considered as a public purpose sufficient to support the use of expropriation even under Louisiana's post-Kelo amendments. The legacy of Ms. Kelo's little pink house should not be to throw a blanket prohibition over the government's authority to expropriate private property for a project which will serve a public purpose simply because that project may involve private parties or produce some benefits to other private interests. In the next segment of this blog, we discuss what your rights are and what you should know if your property is ever taken by the government. We also discuss the ways in which the government can take private property without a lawsuit ever being filed.

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