http://www.theday.com/eng/web/news/re.aspx?re=65cc462b-d517-40ee-9327-d444d0dc8634
Handicapping The Kelo Case Is A Difficult Call
Supreme Court ruling in New London eminent domain case could come tomorrow
By KATE MORAN
Day Staff Writer, New London
Published on 6/12/2005
New London � Attorneys on opposing sides of the Kelo v. New London case dispersed onto the plaza outside the U.S. Supreme Court immediately after oral arguments ended Feb. 22 to take questions from reporters on the proceedings in the most important property rights case in two decades.
Inside the court, the justices were hearing arguments in a second property rights dispute, Lingle v. Chevron, a sleeper of a case that was eclipsed in the media by Kelo but which will have profound effects on the way government can regulate private property.
At issue in Lingle was whether courts can toss out regulations they deem to be bad law � not law that is simply unfair but law too poorly conceived or crafted to accomplish its objective. If the justices had allowed courts to meddle in lawmaking in such a way, they would have touched off a flurry of challenges to laws that regulate land use, enact rent caps and protect the environment.
But the court took a hands-off approach with its unanimous decision on May 23 that the judiciary should let the legislatures conclude whether a particular regulation will be effective. The ruling, possibly a harbinger of what will happen in Kelo, was a disappointment to conservative groups who would limit the government's ability to decide how individuals can use private property.
Attorneys in Connecticut who have followed both cases were hesitant to predict what Lingle might mean for the outcome of Kelo, which should be decided by the court on a Monday in June. But they said the decision does not contain much good news for the homeowners who are trying to prevent New London from taking their property by eminent domain to make way for offices.
The best the homeowners can hope for, attorneys said, is that the Lingle ruling is a neutral indicator of what might happen in the Kelo case.
�It's very hard to read the tea leaves. To predict what's going to happen based on what the court said in Lingle would be risky,� said Michael Shea of the firm Day Berry and Howard, who wrote an amicus brief in the Kelo case for the Connecticut Conference of Municipalities. �Having made that disclaimer, I'd say as somebody who supports the city that we were pleased by the decision in Lingle and what it says about the standard of review the court is going to use for takings claims.�
The Lingle case arose after the Hawaii legislature passed a law in 1997 that capped the amount oil companies could charge dealers who rented retail gas stations from them. The state's isolation meant competition was limited, and the legislature hoped that the rental caps would help to deflate the price of gas for consumers.
Chevron, the oil company that controlled 60 percent of the market in Hawaii, sued the governor and the attorney general, claiming the rent ceiling amounted to a taking of property. The company also argued that the taking was improper because it did not advance the interest of the state. Consumers never saw a reduction in price so the law was ineffective.
The trial court and a federal circuit court sided with Chevron. In their decisions, both relied on a 1980 U.S. Supreme Court ruling that gave judges the right to examine whether a law �substantially advances� the interest of the state. When the Lingle case went to the Supreme Court this term, however, the justices used it to repudiate their earlier decision and renew the practice of deferring to legislative judgment.
Justice Sandra Day O'Connor, the author of the unanimous decision, said courts would be unduly burdened if they had to review every challenge to a regulation that limited what could be done with private property.
�If so interpreted, it would require courts to scrutinize the efficacy of a vast array of state and federal regulations � a task for which courts are not well suited,� O'Connor wrote. �Moreover, it would empower � and might often require � courts to substitute their predictive judgments for those of elected legislatures and expert agencies.�
Here is where some prognosticators believe the Lingle decision bodes poorly for the homeowners in the Kelo case. The attorney for the homeowners, Scott Bullock of the Institute for Justice, asked the court to rule that governments never have the right to seize private property to generate land for business development, even if such projects help the public by producing jobs and tax revenue. If the justices reject that argument, Bullock asked them to review whether developments have a reasonable chance of coming to fruition before courts authorize the taking of private property.
Some attorneys guessed that the court, given its history of deference in Lingle and other takings cases such as Hawaii Housing Authority v. Midkiff, would not agree to conduct that sort of review.
�The Scott Bullock arguments are eclipsed, I believe, by the powerful statement in Midkiff about deference to legislative discretion. The fact that this is reiterated in Lingle suggests a pro-government stance,� said Dwight Merriam, a Hartford land use attorney who is editing a book about the Kelo case that will be published by the American Bar Association in October.
Bullock, however, was not particularly distressed by the Lingle decision. He said the Supreme Court used a separate line of analysis than it would be using in the Kelo case. While Lingle focused on questions of compensation, he said, the Kelo case revolves around whether the jobs and taxes created by private business development are enough of a �public use� to warrants the taking of private property. He noted that the Lingle decision never mentioned the court's seminal takings cases, the 1954 case Berman v. Parker and the 1984 Midkiff case, which will doubtless play heavily in the Kelo decision.
Bullock also said the Institute for Justice is asking courts for a different sort of review than Chevron was demanding in the Lingle case. He says his law firm, based in Washington, D.C., is trying to prevent the seizure of property for developments that are purely speculative. He said some of the property owners in the Kelo case could lose their homes even though the city has only nebulous plans for the property once the houses are gone.
�What Lingle was really talking about was whether this rent control statute would be effective, whether it would do the things it claimed to do,� Bullock said. �The court said it shouldn't be making those types of judgments. We're not asking if the office park will be successful or if it will create tax revenue, but we're asking if there is some likelihood that it will come about at all.�
Matthew Berger, a New London land-use attorney, said he thought Lingle was �devastating� for Kelo after he read the decision for the first time. But in a later reading, he homed in on a paragraph in which O'Connor points out that the question in Lingle is whether the rent control regulation is effective � not whether it served a valid public purpose. The primary question in Kelo, however, is whether economic development takings serve primarily a public or private use.
�Whoever wins, people will look back and say in retrospect that Lingle foreshadowed it,� Berger said. �The emphasis on legislative deference would seem to support the city's claims in Kelo, but having read Lingle, I still don't know who will win.�
Lead plaintiff Susette Kelo
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