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News Release

Last modified: Friday, June 24, 2005

U.S. Supreme Court decision affirmed current laws on eminent domain, IU professor says

BLOOMINGTON, Ind. -- The recent Supreme Court decision on Kelo v. City of New London basically affirmed current laws pertaining to eminent domain, said Jeffrey Stake, a professor at the Indiana University School of Law-Bloomington.

"Ironically, dissenting Justice Sandra Day O'Connor authored the opinion for the court's similar decision on Hawaii Housing Authority v. Midkiff , writing in 1984 that "the 'public use' requirement is coterminous with the scope of the sovereign's police powers,'" said Stake, who specializes in property law. "Now, in the Kelo dissent, O'Conner says her earlier language in Midkiff was 'unnecessary.'

"Usually it is the liberal wing of the court that sticks up for the rights of individuals against the state. Here the roles are reversed," he said.

Although the decision reaffirms existing rules, there are several reasons, according to Stake, why this law should be of concern to property owners.

"The Constitution is supposed to protect the minority from the majority, but failed to do so here," he said. He also noted that the power of eminent domain in this case was exercised by a private nonprofit, rather than the government. "This is a problem because those who decide to take property are not elected. Another hidden problem is that there may be bribery of or corruption in the city government."

The taking of land for public use raises other issues beyond our federal constitution, Stake said, such as whether "in the interests of fairness, owners should get a cut of the profits when the new development is worth more than the sum of its parts ... People should get special compensation, more than market value, when their homes are taken."

Under the law, the owner is supposed to be paid the market value, although the compensation will likely be lower. "Little guys often do not have the resources to make a good case for the value of their lands," he said. "In addition, there is no compensation for sentimental value. One of the homeowners who will lose their property as a result of the Kelo case has lived there 87 years."

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