July 19, 2005
Keith Aoki: Kelo decision and Measure 37 leave individual property owners in the cold
The Strange New Bedfellows
of Measure 37
In a world of rich and poor, there is private property and then there is private property.
The U.S. Supreme Court’s decision earlier this month upholding broad powers of local governments to condemn private property (Kelo v. City of New London) makes for some strange bedfellows: Activists on the left attacked the decision as a blow to the struggles of communities of color trying to battle environmental racism; activists on the right criticized the decision for eroding the inviolability of private property rights.
But what might these strange bedfellows tell us about property rights in terms of our own Measure 37 here in Oregon?
Susette Kelo was a sympathetic plaintiff, a middle-class woman who owned a home in a working-class neighborhood that New London wanted to condemn, bulldoze and redevelop into an office park/marina for the anchor tenant, the drug giant Pfizer. But a five-person majority of the Supreme Court deferred to New London’s determination that condemning Kelo’s nonblighted neighborhood was for a constitutionally suitable “public use” — that is, increasing the city’s tax base.
The court’s “we’re sorry for Susette-Kelo-but-that’s-the-way the
economic-development -cookie-crumbles” opinion concluded that no more searching inquiry of what processes went on behind the scenes is required by the Constitution.
The Kelo dissent by retiring Justice Sandra Day O’Connor, on the other hand, eloquently raises the issue of how poor and rich people will be treated differently by cities wielding the power of condemnation: “Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
In his own dissent, Justice Clarence Thomas underlined that poor people — many of whom are persons and communities of color — will be the most likely to lose their homes under the ruling, particularly when the wealthy and powerful capture City Hall.
The ruling shows how property rights and the exercise of corporate power may be diametrically opposed. In terms of the rhetoric surrounding Measure 37 in Oregon, Dorothy English’s anguish at not being able to build a house on her Portland West Hills property may not be consonant with Wal-Mart’s desire for a box store or a developer’s yen to create a large subdivision.
Kelo’s desire to hold out and not sell her property is a perfect example of how the assertion of individual private property rights may be a shield from bullying abuses of both public and private power. Pfizer undoubtedly thinks that its private property rights entitle it to build its office park whenever and wherever it wants, as long as it can pay the price, even if the property owner from whom it wants to buy doesn’t want to sell.
In the same way, the concerns behind Measure 37 are incomplete. While the measure aims to deal with abuses of public power and requires compensation for partial “takings” caused by regulation, it would seem to be unconcerned with abuses of concentrated private power, whether working through a captive City Hall or through coercive marketplace behavior.
What of the private property interests of the neighbors of those granted Measure 37 waivers who find their expectations about the stability of their property values drastically changed? Or those who find the level of services delivered by local governments has been crippled by Measure 37 payouts?
Looked at in this way, Measure 37 seems like just another way the wealthy and powerful can work the system to their advantage and to the disadvantage of poor and working people, who fill the tax coffers that Measure 37 finds a way to empty.
The justices who dissented in the Kelo decision would have checked this trend, saying that cozy government and business interests would have to withstand judicial scrutiny.
So, in the end, who is left out in the cold by the Kelo majority and the incompleteness of Measure 37? Individual private property owners.
Keith Aoki is the Philip H. Knight Professor at the University of Oregon School of Law.