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Little Pink House
Richard M. Frank
Professor of Environmental Practice, UC Davis School of Law
Richard is director of the California Environmental Law & Policy Center at the UC Davis School of Law.
The U.S. Supreme Court's decision in Kelo v. City of New London (545 U.S. 469 (2005)) was one of the Court's most controversial and unpopular in recent years. And it is probably the most important property rights opinion the justices have rendered in the past quarter century.
As this new book makes clear, the Kelo case also has a colorful history and cast of characters. In Little Pink House author Jeff Benedict focuses on the key players in this human and legal drama. Its centerpiece is Susette Kelo, the lead plaintiff in the case and a determined woman who became the face of the property rights movement's nationwide campaign against perceived government abuse of its power of eminent domain.
In the decades before Kelo, the city of New London, Connecticut, had been in economic decline. In an effort to revitalize the community, New London embarked on a redevelopment project for its waterfront that included a hotel, marina, shopping areas, R&D office space, new residential construction, and a public park and pedestrian walkway. Critically, significant portions of the proposed redevelopment area would be owned and operated by private parties, reflecting city officials' belief that the redevelopment project would produce substantial economic benefits, including expanded tax revenues, for the community.
Among those opposing New London's redevelopment project was a small group of landowners - led by Kelo - whose homes and small businesses stood in the way of the project. Several of the residents had occupied their homes for many years. The affected properties were not blighted or in poor condition; rather, they were targeted for acquisition simply because they were located in the area proposed for redevelopment. When Kelo and her neighbors refused to sell their properties voluntarily, the city commenced eminent domain proceedings against them.
The legal issue in Kelo that ultimately made its way to the Supreme Court was whether government may exercise its power of eminent domain to condemn private property even when that property is ultimately to be conveyed to other private parties for their use and occupation, as long as it furthers general public economic objectives. In the Court's 2005 ruling, a bare 5?4 majority of the justices answered that question in the affirmative.
Public reaction to the Kelo decision was swift and almost uniformly negative. As chronicled in Little Pink House, the Court's ruling made the front pages of major newspapers, and editorial writers and radio commentators across the country excoriated the decision - and the Court - for allowing redevelopment officials to evict Susette Kelo from her "little pink house" simply to facilitate a private development project.
As Benedict recounts, the greatest irony in the saga of Kelo and her neighbors is that although the city of New London won its legal battle against the homeowners, it lost the political war that followed. In the three and a half years since Kelo was decided, more than 40 states have reformed their eminent domain laws, as Justice John Paul Stevens's majority opinion noted they remained free to do, to prevent the sort of "private development taking" pursued by New London officials and validated by the Supreme Court. (California did so by initiative last June, when state voters overwhelmingly approved Proposition 99.)
Little Pink House is by no means a neutral, dispassionate account of this legal and political conflict. The book has a point of view, and an ax to grind. As portrayed by Benedict, Kelo and her neighbors are noble, oppressed citizens, and their attorneys are visionary and principled advocates. The municipal officials of New London, by contrast, come across as a combination of Boss Tweed and Darth Vader, and their lawyers as both naive and ineffective. This, unfortunately, reduces the difficult and nuanced issues that were at the heart of the Kelo litigation to little more than caricature.
Nevertheless, the book makes some important points. The city's attorneys saw the Kelo case in purely legal terms: One of them is quoted as saying of his Supreme Court advocacy, "My job is to get five votes, not to win a publicity campaign." Another, bemoaning the political firestorm that followed the ruling, complained, "I thought I won. But nobody cares. America doesn't accept what the Supreme Court said."
Kelo's attorneys at the property rights advocacy group Institute for Justice always viewed the case from a very different perspective. As recounted in Little Pink House, Kelo's lead counsel, Scott Bullock, sagely observed, "If crafted properly, lawsuits can be the basis for changing public policy." The book details the institute's strategic campaign of media outreach and public relations, a campaign that complemented and ultimately eclipsed the organization's legal advocacy.
Whether or not one agrees with the views of Kelo and Bullock reported and embraced in the book, one major fact remains: Though property rights advocates lost the Kelo case in the courts, they ultimately won the larger political battle for public opinion and eminent domain reform.
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