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Associate Professor Of Business Law
Iona College, New Rochelle, N. Y.
April 2006

In the early 1960’s, the Everly Brothers performed live at a place called Freedomland, a precursor to modern day theme parks. The area was subsequently cleared and became the site of the present day Co-Op City in The Bronx. There was not much of an audience, but the Everly Brothers were terrific. Bird Dog, Dream, Crying In The Rain, Wake Up Little Susie; the tunes filled the open air. It seems like only yesterday. About forty (40) years later, a much larger, “baby boomer” type crowd found itself sitting in the open air at the Ives Center in Danbury, Connecticut, listening to, would you believe, Don and Phil Everly. The warm up act was the Kingston Trio. The more things change, the more they remain the same. Wake up little Susie…we fell asleep, our goose is cooked, and we’re in trouble deep… The mood was nostalgic, the weather and the company were great, and everyone seemed genuinely happy to be there. When leaving, all had reminiscent smiles on their faces. Wake up little Susie, we gotta go home.

It was about that time that there was trouble brewing in River City, as they say. The river city happened to be New London, Connecticut. As it turns out, this past June, 2005, five (5) of the Supremes gave a special performance in Washington, D.C. (without Dianna Ross). They dealt with the trouble in the river City of New London, but they sang a somewhat different version of the old Everly Brothers’ hit, to wit: Wake up little Susie…you fell asleep, your goose is cooked, and you’re in trouble deep…Wake up little Susie, you gotta no home.. (to go to). This would be mildly amusing to anyone who witnessed the show in June except that the cast of the Supremes included: Stevens, Kennedy, Souter, Ginsberg, and Breyer, and it was The Supremes (as in Supreme Court Justices) telling Susette Kelo (as in the lead Plaintiff in Kelo v. New London (1) ) that she had no home to go home to. Not only were she and the other class action property owners left crying in the rain and ruled out of order in their attempt to bar the City Of New London from taking their property, the Supremes concluded that it was going to be just fine that the government would then turn the litigants’ property over to as yet unnamed private developers, putting the new owners in excellent position to turn potentially enormous profits. Developers all over were heard mimicking the Kingston Trio: “This land was your land, this land is (now) my land…” The questions raised herein are, at least, twofold: (1) “How could this happen?”, and, (2) “What’s wrong with this picture?”

The Underlying Facts. The City Of New London, Connecticut, sits where the Thames River runs into Long Island Sound in the southeast part of that State. Since the 1960’s, New London had economically declined, and by 1990, it was declared a “distressed municipality” by a state agency. Federal cutbacks in the defense industry in the 1990s took a further toll. Population was going down, unemployment was going up, and the State was looking for a cure. The New London Development Corporation, a nonprofit group commissioned to assist in formulating economic redevelopment, and others, were successful in convincing the State of Connecticut to float a total of in excess of $15 Million in bonds, the funds to be used in furtherance of the Development Corporation’s plans, and the creation of Fort Trumbull State Park. One month later, in February of 1998, Pfizer, Inc., the international pharmaceutical company, announced plans to fund a $300 Million research facility, to be located adjacent to the Fort Trumbull location. Shortly thereafter, the New London City Council authorized the Development Corporation to proceed with the plans that centered on ninety (90) acres of the Fort Trumbull area. In January, 2000, the City designated the Development Corporation as its agent to proceed with implementation of its plan. The Development Corporation was authorized to negotiate the purchase of properties within the development area, and, if necessary, exercise the power of eminent domain in the name of the City Of New London to acquire properties from property owners unwilling to sell. Many property owners eventually agreed to terms of sale, but some did not. As a result, the New London Development Corporation (NLDC) commenced condemnation proceedings against the unwilling owners in November of 2000. The affected property owners commenced suit in Connecticut State Court, claiming that the action taken against them was a violation of the “public use” clause of the Fifth Amendment of the U. S. Constitution. The Connecticut trial court (2) granted partial relief to some of the property owners, and denied it to others. Upon appeal to the Connecticut Supreme Court, relief was denied to all the alleged aggrieved property owners.(3) The property owners appealed to the United States Supreme Court.

The Decision. Mr. Justice Stevens, delivered the opinion of the Court, with Justices Kennedy, Souter, Ginsberg and Breyer joining in. Mr. Justice Kennedy filed a concurring opinion. Justice Stevens framed the issue as “…whether the city’s proposed disposition of this property qualifies as a “public use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.” (4) Justice Stevens, after an extensive analysis of where to Court had come from on the issue of “public use”, states that “Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.” (5) As a result, the Connecticut Supreme Court’s decision denying relief to Susette Kelo and the others was affirmed.

Analysis and Commentary. The Court’s decision takes one on a virtual history tour of the taking of private property in America for public use. As a given, most people would agree that if the government needs some parcel of private property for public use for, say, a roadway, school, or similar public woks project, that the Takings Clause would so allow same. But when does “public use” become re- defined as a watered down “public purpose” doctrine? Frankly, it should be no surprise to those who now scream “Foul!” that such is the position, because it has been a long time in the making. Navigating the reader through the path of history, Justice Stevens seemingly shows how this has logically (and legally) progressed over the past one hundred (100) years. Two (2) cases in particular are heavily relied upon in the majority opinion in Kelo.

  1. BERMAN V. PARKER (6) The Supreme Court in 1954 ruled that a redevelopment plan in Washington, D.C., that targeted a blighted area, was valid, and allowed the taking of all the properties in the targeted zone, including the property containing a department store that itself was not blighted. Justice Stevens, in quoting the language of Berman, (“If those who govern the District Of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” (7)) used that case to bolster his position in Kelo that the general “better” use of the property, and the increased economic benefit to the community in general would not violate the public use language of the Constitution, using Berman as support for the continued axiom that “public use” can mean “public purpose”.

  2. HAWAII HOUSING AUTHORITY V. MIDKIFF (8) In 1984, the Court ruled that a state statute taking away private property from individual owners and, in effect, re-distributing it to others, was constitutional, because it was appropriate to reduce the peculiar concentration of land ownership that existed in Hawaii. Berman was cited as authority in this case, and the contention that transfer from one owner through the State directly to another owner was still, in fact, a valid “public use”, became a precedent that did not prevent Justice Stevens from finding as he did in Kelo.

The Dissent in Kelo. Justice O’Connor wrote a Dissent in Kelo, in which The Chief Justice joined, along with Justices Scalia and Thomas. Mr. Justice Thomas also wrote a separate dissenting opinion. Justice Thomas, standing on his longtime reputation for “original intent” analysis, states: “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. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.” (9) He further states: “The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power.” (10) Justice Thomas goes on to make his case that Berman and Midkiff were likely incorrectly decided, based to a great measure on dictum in prior cases, and that reliance on said dictum was overreaching by the Court.

Author’s Comment. It has been many years since the public was told that Little Suzie had to wake up, face the music and go home. It has been approximately one year since Suzette Kelo got her wake up call, telling her that she in fact had no home to go to. There has been public outcry, and outrage expressed. There have been numerous other cases of alleged eminent domain abuse brought forth to the media, in the newspapers, television and talk radio. One only has to Google “Eminent Domain” to find hundreds if not thousands of current complaints of government overstepping. Congress and many state and local legislatures have taken up positions against the use of public funds for eminent domain that would result in private property being, in effect, transferred to private developers. There has even been a groundswell action to have Justice Souter’s personal residence in New England be condemned for public use as a historic place and tourist attraction depicting the extent to which property owners can have their rights compromised. The New London project that gave rise to the Kelo case has hit bureaucratic snags, and may not go forward as initially planned. The Supreme Court has two new members, but they only at best would likely vote the way their predecessors had in Kelo, leaving a 5-4 decision unchanged at this point if any similar case comes before it. As a result, as for the status of the public use doctrine, the “watered down” definition as set forth in prior case law and re-affirmed in Kelo v. New London is the supreme law of the land.


  1. 125 S.Ct. 2655 (2005).
  2. Kelo v. City Of New London (Unreported) 557299 Superior Court of Connecticut (2002).
  3. Kelo v. City Of New London, 268 Conn. 1 (2004).
  4. Kelo v. New London, 125 S.Ct. 2655, 2658.
  5. Id., at 2668.
  6. 348 U.S. 26 (1954).
  7. Id., at 33.
  8. 467 U.S. 229 (1984).
  9. Kelo, at 2678.
  10. Id., at 2680.

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