The Ohio Supreme Court's unanimous decision in Norwood v. Horney, issued today, is an important victory for property rights. It is probably the most important judicial decision on eminent domain since Kelo v. City of New London. Perhaps the most significant element of the decision is the fact that the Court went beyond banning "economic development" condemnations of the sort permitted by the U.S. Supreme Court in Kelo, and also suggested that there are state constitutional limitations on the governments' power to condemn property that is designated as "blighted." The Ohio Supreme Court has also become the 11th state supreme court to ban Kelo-style condemnations under its state constitution, a decision which largely negates the shortcomings of Ohio's woefully inadequate post-Kelo "reform" law.
I. Banning Economic Development Takings.
First and most obviously, Norwood bans the condemnation of property for transfer to another private party in order to promote "economic development." The Ohio Supreme Court has now become the eleventh state high court to ban Kelo-style takings under its state constitution, and the second to do so since Kelo was decided (following Oklahoma):
Although we have permitted economic concerns to be considered in addition to other factors, such as slum clearance, when determining whether the public-use requirement is sufficient, we have never found economic benefits alone to be a sufficient public use for a valid taking. We decline to do so now....
We hold that an economic or financial benefit alone is insufficient to satisfy the public-use requirement of Section 19, Article I [of the Ohio Constitution]. In light of that holding, any taking based solely on financial gain is void as a matter of law and the courts owe no deference to a legislative finding that the proposed taking will provide financial benefit to a community.
Unfortunately, there is an important problem here, because the Ohio Court still permits "economic concerns to be considered in addition to other factors, such as slum clearance, when determining whether the public-use requirement" has been met. If this exception is interpreted broadly, it could greatly undermine the impact of Norwood, since local governments can often cite some "other factor" to justify a condemnation that is in reality undertaken for development purposes. A categorical ban on the "economic development" rationale would have been better. If the "other factors" are sufficient to justify condemnation in their own right, well and good. But it is a mistake to allow otherwise inadequate factors to go through because of claims that the condemnation will also promote development. Hopefully, Ohio courts will interpret the "other factor" exception narrowly.
II. Potentially Limiting Blight Condemnations.
The most unique and original aspect of the Norwood decision is the way in which it may limit "blight" condemnations, as well as those purely for "economic development" purposes.
As I have pointed out in both blog posts (e.g., here), and in my academic work (see here and here), broad definitions of blight of the sort which are all too common in state legislation can undermine a ban on economic development takings by licensing local officials to declare virtually any area blighted, thereby allowing the property there to be condemned. Recent state court decisions have concluded that such areas as Times Square and downtown Las Vegas are "blighted," thereby justifying condemnation of property to build a new heaquarters for the New York Times and new parking lots for politically influential Las Vegas casinos. See Las Vegas Downtown Redev. Agency v. Pappas, 76 P.3d 1 (Nev. 2003) (Las Vegas case); In re W. 41st St. Realty v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (N.Y. App. Div. 2002) (Times Square case).
The Norwood decision can help put a stop to such abuses, especially if courts in other states choose to adopt its reasoning. In Norwood, numerous homes in relatively good condition were condemned by a local government under an ordinance that allows condemnatin of property that was in a "slum" area, "blighted," or "deteriorated." Only the third of these ("deterioration") was claimed to be present by the government in the Norwood case. The Ohio Supreme Court refused to permit condemnation under this rationale because the city's definition of "deterioration" would permit condemnation of virtually any property in any neighborhood:
As defined by the Norwood Code, a “deteriorating area” is not the same as a “slum, blighted or deteriorated area,” the standard typically employed for a taking. And here, of course, there was no evidence to support a taking under that standard. To the contrary, the buildings in the neighborhood were generally in good condition and the owners were not property-tax delinquent...
The Norwood Code sets forth a fairly comprehensive array of conditions that purport to describe a “deteriorating area,” including those found by the trial judge in this case: incompatible land uses, nonconforming uses, lack of adequate parking facilities, faulty street arrangement, obsolete plotting, diversity of ownership. In addition, the trial court identified the following factors as supporting the determination that the neighborhood was deteriorating: increased traffic, dead-end streets that impede public safety vehicles, numerous curb cuts and driveways, and small front yards. But all of those factors exist in virtually every urban American neighborhood. Because the Norwood Code’s definition of a deteriorating area describes almost any city, it is suspect.
(emphasis added).
Although Norwood addressed only the issue of condemnations of "deteriorated" areas rather than "blighted" ones, the exact same reasons why the Ohio Supreme Court rejected the City of Norwood's "deterioration" rationale can also be used to strike down overly broad definitions of blight.
Up until now, no other state supreme court has confronted the contradiction between banning "economic development" takings and permitting blight condemnations under a virtually limitless definition of "blight." Hopefully, other states will resolve this issue in a way similar to Ohio's approach.
III. Connection to Post-Kelo Legislation.
The Norwood decision is also noteworthy because Ohio recently enacted one of the least effective of all post-Kelo reform statutes. As I explain in greater detail in a forthcoming article (pp. 69-71), the new Ohio law accomplishes almost nothing. The centerpiece of the law is the establishment of a commission to consider eminent domain reform - a commission stacked with representatives of interest groups that benefit from economic development takings.
The conjunction of the Norwood decision and Ohio's virtually useless post-Kelo law emphasizes the need to recognize that we cannot rely exclusively on the political process to protect constitutional property rights, a point I previously stressed here and here. Sometimes, judicial intervention is also needed.
CONFLICT OF INTEREST WATCH: As noted here, I once briefly worked for the Institute for Justice, the public interest law firm that represented the property owners in Norwood and Kelo, and have written several pro bono amicus briefs for them.
UPDATE: I should have also noted the significance of the Ohio Supreme Court's holding that "Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminent domain powers." This potentially could limit ALL uses of eminent domain, not just those that transfer the condemned property to private parties (as in Kelo and other "economic development" cases). Two other states (Michigan and Delaware) apply heightened scrutiny to condemnations that greatly benefit particular private interests, but Ohio will be the first state to apply it all uses of eminent domain. It is not yet clear exactly how demanding Ohio's "heightened scrutiny" doctrine is going to be, but it certainly strengthens protection for property owners against eminent domain abuse.
UPDATE #2: A small correction: the Norwood ordinance ultimately at issue in the decision is not the one that permits condemnations of blighted, slum, or deteriorated areas, but a similar one that allows the taking of "deteriorating" property. I missed this distinction in my first reading of the opinion, and thank Institute for Justice attorney Dana Berliner for correcting me.
Related Posts (on one page):
- Blight, Sweet Blight - The Problem of Blight Condemnation After Kelo:
- The Ohio Supreme Court's decision in Norwood v. Horney - A Major Victory for Property Rights:
- Ohio Supremes Limit Eminent Domain:
Of course, there is one flaw in your reasoning. Judges themselves are selected via the "political process." While judge X with a particular ideology may prefer a narrow interpretation, judge Y with another may prefer a broad one. In the end, it all depends on the judge. And of course, the judge depends on the process by which they are appointed. In Ohio, Supreme Court justices are elected. A different set of justices could easily find reason to change the precedent set in this case. Which means that with new elections, the law can change.
Oh so sorry, I guess you have to rely on the "political process" to advance your ideology after all. Too bad we live in a democracy... Even your precious property rights, are in the end, with respect to their definition and limitations, subject to democracy. How could it be otherwise, when, after all, it is the coercive power of government that protects them in the first place?
Don't forget we have 50 states. When these little laboratories of democracy demonstrate that economic development is superior to property fetishism, it is very likely that those states with inferior regimes, like Ohio, will adjust to the superior view. Of course, the people of Las Vegas are better off with parking lots near the strip! If guests cannot find parking, they will not be inclined to visit those Casinos. By not allowing eminent domain, you increase the costs of creating that parking, thus distorting optimal development.
From an economic perspective, allowing more robust eminent domain is superior, because it more economically efficient. The reason that property near the strip is valuable, is because of the Casinos, not the owners of lots who do things of lesser value with their land. By allowing eminent domain we lower the costs for the true value-creators. And as any economist should be able to explain, with lower costs, we can expect greater consumption of the product in question. In this case, the product is economic development. We can thus expect states like Nevada will enjoy more economic development than states like Ohio. And your ideologically driven property rights fetishism will die out as obsolete in a modernizing world.
Evolution is beautiful. Down with the dinosaurs!
Anyway, I can argue about eminent domain all day, but I think that Judge Kozinski does a better job explaining why critics of the Kelo decisions are overreacting in an interview in Reason magazine:
You may be right that private property can be put to more effiecient uses by other private entities, but what limits, if any, does the term "public use" create? Of course one wonders whether an eminent-domain taking reflects a true market since one party is being dragged to the transaction at gunpoint and that same party is not setting the value of the property rather 12 of his peers are. But leaving that aside, it seems odd that the public-use language would be included in the federal constitution and most state constitutions if the only requirement for a government taking is just compensation.
Addressing Judge Kozinski's point about whether it should be the locality that determine what constitutes a public use, he does not explain why the localities, which often have a financial interest in the outcome of the decision, are better decision maker than the courts. Is Judge Kozinski for overturning Marbury v. Madison? Has he advocated that locally elected sherriffs should determine what constitutes a reasonable search and seizure and that the courts should defer to this decision? (sure the criminal would get put in prison, but he could bring a section-1983 suit so he would be made whole) Why would any legislative act be declared unconstitutional where the people's representatives have spoken? Section 1983 suits for all.
Call me a dinasour I guess, but fundamental individual rights trump "progress."
Here's an aerial shot of the neighborhood involved, before all but three of the houses were torn down. The neighborhood is the triangle of homes to the right of the large shopping area:
Before picture, looking north west
And here it is today, with the last three houses still standing:
After picture, facing south east
Regarding the whole "deteriorating" thing - this section of Norwood was sliced off by I-71 in the 1970's; many its yards were sliced off by the widening of Edmonson Road; and traffic is high largely due to nearby development and a highway entrance ramp. Something seems awfully unfair about a city slicing a neighborhood up from the edges, and then using that to justify taking the remaining homes.
Thank God you aren't in charge of putting eminent domain to the test - there wouldn't be any private property left in the US.
Private property is fundamental to both freedom and capitalism. Otherwise we become ruled by an oligarchy of those who can convince the courts that their money is better for the system than your house.
Clearly, the protection of private property itself is not at stake in the Kelo decision. If it was, do you think that Kozinski, a libertarian 9th Circuit Court of Appeals judge would support the decision? Your point does illustrate the overreaction that is not uncommon when certain ideologues discuss the Kelo decision. Kelo is the law of the land, and last time I checked, private property rights are still protected in this country.
That is odd. Wasn't Mr. Somin arguing that the "political process," which one would think is normally and legitimately in charge of policy, wasn't adequate to protect "constitutional" property rights? Is Mr. Somin saying that if democracy is inadequate to advance his favored policy, that judges should step in? It sounds to me as though Mr. Somin is simply in favor of advancing his ideological preferences by any means necessary. If what he calls the "political process" doesn't work, then litigation should be used.
As far as I am concerned, there is nothing wrong with that. I wouldn't really expect someone who passionately believes in something to refrain from advancing their ideas by any means necessary. But then, we shouldn't pretend that litigation is seperate from the political process in that case. After all, apparently the answer to whether the "other factor" exception should be read narrowly or broadly is simply a matter of political (or ideological) preference. At least, we can infer that this is so based on the reasons that Mr. Somin gives for reading this exception narrowly, which have nothing to do with the original intent, text, or precedent involving that Ohio state constitution and everything to do with preferred policy.
Im sorry, but Mr. Somin's point that we should "recognize that we cannot rely exclusively on the political process to protect constitutional property rights" does not make any sense. Clearly, the definition of "property rights" that Mr. Somin wants to protect is not one grounded in the constitution of Ohio. He refers to policy, not law, in arguing for a narrow interpretation. So, it is inaccurate to say that one thinks that "constitutional property rights" are what is being protected as opposed to Mr. Somin's personal ideological conception of property rights. The qualifier "constitutional" before property rights should be removed for accuracy. Ultimately, given the reliance on policy reasons as a guide to interpretation, what we have is not law, but politics. Politics by judges. I don't see how politics by judges can really be thought of as outside the "political process." Mr. Somin should not pretend that what he advocates is justified by law, rather than politics. Perhaps there are arguments that could be made that are genuinely legal, but clearly, those are not the arguments that motivate Mr. Somin and his desire to maximize the impact of the decision of a lone state Supreme Court.
Further note that we can infer that Mr. Somin hopes that courts in other states will adopt Ohio's reasoning. He says that Norwood can do much to prevent eminent domain abuse, "especially if courts in other states choose to adopt its reasoning." But surely, Mr. Somin cannot say with a straight face that he is making an argument that if they do so, they are doing it based on their own constitutions, absent evidence that the state in question used the Ohio constitution as a model for their own. Ultimately, Mr. Somin doesn't not hope other states adopt the Ohio Supreme Court's reasoning for reasons of law, but rather as a matter of politics. Or to prevent what Mr. Somin calls (for ideological rather than legal reasons) "eminent domain abuse."
Simply put, Mr. Somin is a judicial activist.
Who wants to move back to that?
I would still be interested in your views about what way(s), if any, the term public use is supposed to limit takings. Does that language in either the Ohio or federal constitution have any meaning or is it merely superfluous?
As the Ohio Court pointed out in the opinion, allowing "economic development" or something like Norwood's concept of "deterioration" to justify condemning property would allow virtually any property to be taken, thus, making the term "public use" meaningless. Moreover, it would also uphold virtually any condemnation that transfer property to a profit-making business (as one can always claim that the new owners will increase "development" or alleviate "deterioration" if the latter is defined as broadly as in the Norwood ordinance). My discussion of the "impact" of the decision merely notes that a broad interpretation of "other factors" would have exactly the same effect.
These points are definitely consistent with a textualist reading of the Ohio Constitution (or other constitutions that use the term "public use"). I would also add that the term "public use" is pretty obviously not the same thing as "claimed public benefit" from increasing development or from eliminating some "other factor." Again, a pretty clear textualist point.
Even on your own terms, you've got a problem. Utilitarian economists don't seek "greater consumption of the product," they seek optimal consumption of the product. I, and many others, believe that our best shot at an optimal transaction level comes when neither party at the negotiating table comes equipped with a gun.
I do deeply love the fact that "diversity of ownership" is a factor in blight. What in the ever loving hell does that mean? If you look at any sizeable block of property, there will be a diversity of ownership... lots of different people, some owner occupiers, some investors, etc. Curb cuts? So lots of houses then. Dead ends? AKA every single suburb with the love of cul de sacs and lots of older urban neighbourhoods trying to cope with traffic.
Vorn is just a troll, leftist tool of the developers. Talk about your false consciousness!
By what Kelo did, there is no true limit to what "public use" means. A Wal-Mart would bring in more revenue to the city than a private home, so does that count as "public use."
What Kelo did was essentially say that if someone had more money, they could convince the government that they needed the land. Private property is supposed to mean it belongs to me, not that I use it until the government wants to give it to another private citizen or company.
Once again, Vorn - glad you aren't in charge...and with those views, you never will be.
However, if clearing the slum would have no long term impact besides giving big box stores a benefit they should not be able to use emminent domain for this purpose. In particular if there is good reason to believe that the slum will just reappear or appear somewhere else once demolished this exercise of emminent domain would amount to nothing more than a hand up to these private parties.
Yet the difference between the condemnation we wish to allow and the one we don't is simply the amount of economic development expected. If demolishing the slum will lead to economic development that makes people's lives better it is a valid use of the emminent domain power as it rids the city of a genuine harm as well as reducing crime. A goal that would be impossible to accomplish without this use because no private party could clear the slum. However, if it doesn't provide economic development and will inevitably cause the slum to be recreated elsewhere it shouldn't be allowed.
Until someone can propose a good rule for how to evaluate emminent domain uses that doesn't require taking economic benefits into consideration it seems to me that it just isn't possible.
The point of allowing slum clearance under the guise of "public use" is that the slum itself is a bad thing, such that clearing it is a good in itself, not so that the land can be used for something better (although obviously the town hopes it will be.)
If you have a pile of broken glass on the floor of your living room, you clean it up because the glass is a hazard, not merely because you want to put a new coffee table in that spot. You may ultimately do the latter, but the removal of the glass is an end in itself.
See the difference? Here, or in New London, there was absolutely nothing wrong with the pre-existing use of the land; the goal was to provide a private benefit to a politically-connected developer. If Pfizer or the developer here had not induced the town to seize this private land, it would never have done so. On the other hand, if there are dilapidated buildings which pose a fire hazard and are being used as crack houses, then you want to clear that land without requiring any consideration about "economic development."
Your reasons for reading the "other exception" factor narrowly were not textualist. Especially your desire to read it out of existence entirely. There is something between a "broad" reading and a "narrow" of the factor in question. So, I am afraid your argument that we should go with a VERY "narrow" reading to avoid the consequences of an excessively broad reading are not textual. A reasonable textualist argument can be made that an extremely broad reading which eliminates the effect of the text (as you interpret it) is not acceptable. But if we imagine the ways we could read the exception from "very broad" to "broad" to "somewhat broad" to "somewhat narrow" to "narrow" to "very narrow" then it is clear that your advocacacy of reading the exception in a "very narrow" manner is not based on a textualist argument, but rather your political inclinations. We know that you were choosing "very narrow" on this spectrum of readings because you say "A categorical ban on the "economic development" rationale would have been better."
Oh so sorry, but the assertion that there should be a "categorical ban on the 'economic development' rationale" is NOT based on textualism. Obviously, as a logical matter, there are choices besides a "categorical ban" on consideration of the factor that would not have the textualist consequences of a broad reading. Thus, your advocacy of a "catagorical ban" is not based on textualism, which would only can be said to eliminate a "very broad" or (perhaps) "broad" reading. Nor is it based on law. Or anything else besides your personal ideological commitments. I do not condemn that, but just note that when you insert "constitutional" before "property rights" that the qualifier should be removed as well as any sense that you are truly advocating action "outside" the "political process." What you are advocating, really, is action "within" the "political process" through the mechanism of litigation that brings these issues to judges with similar ideological commitments.
Your hope that other states adopt Ohio's reasoning when they have seperate constitutions which are unlikely to be derived from Ohio's are not textualist and do not have originalist foundations. Someone interested in law rather than politics would be interested in investigating these individual state constitutions independently without preconceived notions that it would be good if the result came out in a similar manner as in Ohio.
Finally, I am afraid that your argument that "public use" "pretty obviously" does not include "claimed public benefit" (where a state legislature or executive chosen by the public are making the claim) is clearly false. Simply put, using text alone, it is impossible, as a matter of logic and language, to say that the term "use" does not encompass the concept of "benefit." After all, in English, it is perfectly acceptable to say that someone has "used" a "benefit." Or that they make "use" of a "benefit." It is further clear that there is nothing in the word "public use" that logically implies that it must be the judiciary rather than the legislature or executive that determines (or "claims") that a particular thing is a "benefit" or "use" to the public. I am afraid the claim you are making concerning the meaning of "public use" is not in fact "pretty obvious" and that you are not making a "pretty clear" textualist point. That you think your point is "obvious" and "clear" when it is not may be an indication that your hopes (based on your ideology) concerning the meaning of text trump a disinterested analysis based on logic and language.
To determine whether the term "public use" includes the concept of "claimed public benefit" using law rather than ideology would require one to move beyond text alone to original intent and precedent. At least if one was interested in law more than politics.
Respectfully,
Vorn