Court widens scope of property seizure

The New London case raised the most controversial application of public use.

"While the city is not planning to open the condemned land - at least not in its entirety - to use by the general public, this court long ago rejected any literal requirement that condemned property be put into use for the public," Justice Stevens writes.

"Promoting economic development is a traditional and long accepted function of government," Stevens writes. "There is no principled way of distinguishing economic development from other public purposes."

Stevens's majority opinion was joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Justice O'Connor was joined in her dissent by Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. She writes that the high court has opened the door for cities to in effect turn over private property from one person to another.

"Today, nearly all real property is susceptible to condemnation on the court's theory," she says. "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random."

"The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms," she says. "As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result."

In a separate dissent, Justice Thomas says that the court's ruling erases the public-use clause from the Constitution. "Today's decision is simply the latest in a string of our cases construing the public use clause to be a virtual nullity, without the slightest nod to its original meaning," he writes.

David King, a professor at Quinnipiac School of Law in Hamden, Conn., says O'Connor's dissent is "an exaggeration."

"This case is quite consistent with the court's jurisprudence of the last 50 years," he says. "I don't think this is something the average American has greatly to fear."

In siding with city planners against the homeowners, the high court declined to draw a bright-line distinction between projects involving a public use and those implicating a public purpose. The court said a project that benefits the public in some way can rise to the level of public use needed to satisfy constitutional protections of private property.

State supreme courts have been divided on the public-use issue. Eight have ruled that private economic development does not amount to a public use and have barred condemnations in such cases. They are Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, South Carolina, and Washington.

Six state high courts have ruled that private economic development projects are a public use. Those states are Kansas, Maryland, Minnesota, New York, North Dakota, and Connecticut.

In March 2004, the Connecticut Supreme Court ruled that the New London project was a public use because it is aimed at bringing higher tax revenues and jobs to the economically depressed city. The state high court employed an expansive reading of the term. Public use can mean "public usefulness, utility, or advantage, or what is productive of general benefit," the state high court said.

• Linda Feldmann contributed to this report.

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