The government power of eminent domain is a limited one — i.e., government must pay fair market value for private property and can only take it for “public use.” Traditionally, public use meant building roads, schools, city hospitals, and other public facilities.

In the Kelo v. City of New London ruling, however, the High Court authorized the town of New London to take the properties of Susette Kelo and other landowners to clear the way for construction of a hotel, a conference center, health club, and marina. The city’s actions are part of a plan to complement a new research facility for the Pfizer pharmaceutical company.

PLF supported the landowners living in this working class neighborhood as amicus curiae arguing that they should not be forced to give up their homes so that city officials can pass the property on to big private developers and collect more taxes. But the court disagreed, saying that local officials, not federal courts, know best in deciding whether a development project will benefit the community. Justice Sandra Day O’Connor issued a stinging dissent, with Chief Justice Rehnquist, and Justices Scalia and Thomas joining her.

Despite this unfortunate interpretation of the U.S. Constitution by the Supreme Court’s majority, there is a light of hope — challenging eminent domain abuse in the state courts under state constitutional provisions that restrict eminent domain to “public use.”

That’s because the Kelo decision represents the High Court’s interpretation of the federal Constitution; state courts interpreting their own constitutions can always ensure greater protections to private property owners. Thus, PLF will have to direct its arguments limiting the scope of eminent domain to the state courts.

PLF filed friend of the court briefs in the Wayne County v. Hathcock² case successfully arguing that the term “public use” in the context of eminent domain should have a narrower meaning (e.g., building roads, schools, etc.).  The Michigan Supreme Court overruled its infamous Poletown ruling which said local governments can condemn swaths of private land to convey to private developers and corporations.

In future cases like this, PLF will be urging state courts not to follow the U.S Supreme Court’s reasoning in Kelo, but instead to provide greater protections to property owners by following the reasoning of the Michigan Supreme Court.