The U.S. Supreme Court recently made it easier for government to condemn private property and turn it over to private developers in hopes of creating jobs and increasing tax revenue.

In the 5-4 vote in Kelo v. City of New London, the high court rejected a challenge by Connecticut homeowners and businesses to the government's use of eminent domain to acquire their properties as part of a large-scale private development.

The unique aspect of this case, say campus experts, is that the land taken through eminent domain goes to "private" — not public — interests, thus making the ruling a politically charged issue among property rights advocates. Already in California, state Sen. Tom McClintock, R-Thousand Oaks, has vowed to introduce a state constitutional amendment to protect private property in such cases.

The central issue of the case is the Fifth Amendment of the U.S. Constitution, which reads in part, "Nor shall private property be taken for public use, without just compensation." Over the years, the high court has ruled that "public use" includes not only bridges, highways and railroad rights-of-way but also the redevelopment of blighted urban areas.

James Spriggs, a UC Davis political scientist specializing in the U.S. Supreme Court, says the Kelo decision reflects "ideological preferences" among the justices on the issue of private property.

"The opinion's reframing of public use gives government significantly expanded authority to take private property for purposes of economic development," he said. "This is likely to generate considerable effects in this area of the law."

Spriggs said the justices ruled in large measure based on their economic, political, and social goals, or "distributional outcomes."

In his majority opinion, Justice John Paul Stevens said that the redevelopment goal was a "public use" that justified the seizure of the 15 properties, so long as the owners were compensated. He stated that the redevelopment would revitalize an area of New London — which the state had declared a "distressed" municipality — with new privately owned projects such as a pharmaceutical facility, offices and retail space.

Stevens, in reflecting his view of private property, has ruled in favor of the "property takings" 70.7 percent of the time during his career when the Fifth Amendment clause was at issue, according to Spriggs. Since William Rehnquist became Chief Justice in 1986, Stevens has supported these types of acquisitions more than 90 percent of the time, the professor added.

On the other hand, Justice Clarence Thomas has ruled in favor of an expansive notion of public use only 16.7 percent of the time, said Spriggs. For Spriggs, analyzing how the justices vote is the subject of a forthcoming new book that he co-authored with University of South Carolina political scientist Thomas Hansford.

'Revitalizing' projects

Property rights advocates are especially disturbed at the notion of governments "promoting" economic development through such actions.

Larry Peterman, a political scientist who studies privacy issues, says the Kelo case is another step in expanding governmental power at the cost of individual rights, "this time in terms of property rights." He noted, "Partisans of the administrative state will be pleased."

Alan Brownstein, a law professor who studies constitutional law, says the case may not change the law much, despite the media attention and outcry. Government already has a track record of using the power of eminent domain to take property from one party and transfer it to another, Brownstein said.

The justification for using the power of eminent domain is that the public good is "furthered by taking the land from the original owner," he said, "paying him or her just compensation, and conveying it to some other private party who will use it for different and more desirable purposes."

However, Brownstein added, "This power may be abused. Everyone recognizes this."

In her dissent, Justice Sandra Day O'Connor accused the majority of abandoning the traditional principle that government may not take property from one person and give it to another. She also said the development plan was irrelevant to the constitutional issue and disagreed with Stevens' suggestion that citizens who sought private property protections could lobby their state legislators.

Brownstein said the key question regarding eminent domain and the potential abuse of public power is whether the courts are the appropriate institution to determine what constitutes a sufficiently "public use."

"This may be an issue that has to be left to political institutions to decide — subject only to political accountability, rather than judicial review," Brownstein said. He said the case is interesting in that it demonstrates the problems that arise when the line between the public and private spheres becomes blurred.

Campus history

While UC is a public and not private interest, it is authorized to acquire properties through eminent domain through Article IX, Section 9(f), of the state Constitution.

The last time this occurred at UC Davis was in the 1940s when the university took land west of Highway 113 through eminent domain and expanded the campus, which now includes more than 5,300 acres. Opponents of the upcoming university neighborhood, West Village, have argued that this land can only be used for agricultural purposes. However, UC officials contend that the UC bylaws on eminent domain do not require the university to always use the land in question in the same manner.

On another eminent domain issue, UC Davis is a partner in a joint powers authority proposing that Yolo County seize through eminent domain the 17,300-acre Conaway Ranch east of Davis and Woodland and west of the Sacramento River. The matter will be heard Aug. 23 in Yolo County Superior Court.

Yolo County officials claim the public should own Conaway Ranch, valued at $60 million. They say the public would preserve the ranch, which has water rights to Sacramento River and Cache Creek. The current owners say they can properly manage the land and will not develop it. Under the proposal, the county, and not the university, would own the land.

• What do you think about the Supreme Court's eminent domain decision? E-mail your letters or comments to dateline@ucdavis.edu.