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University of Iowa News Release

June 14, 2005

VanderVelde Examines Kelo v. New London Supreme Court Case Issues

University of Iowa law professor Lea VanderVelde believes that an upcoming Supreme Court decision on property rights will set a precedent in the government use of eminent domain, but will do so in a way that will keep legal thinkers busy for years.

"We may see no less than four or five opinions come down," she said. "This is not one of those cases where there are clearly drawn lines between rights, such as states' rights versus federal. The normal polarities on the Supreme Court don't hold here. We could see a variety of splits over a range of possible tests and a range of distinctions drawn."

The case, Kelo v. City of New London, Conn., pits Suzette Kelo, a homeowner in the coastal Connecticut town, against the city that wants to condemn her house for a private commercial development. The city has a depressed industrial economy and hopes the development project by Pfizer will spur development and create new jobs. Kelo has a view of the ocean from her modest home and she is one of the few holdout property owners in the neighborhood. So far, courts have found in favor of the city's right to condemn the land and Kelo is asking the U.S. Supreme Court to overturn those decisions so that she can keep her home.

VanderVelde, an expert on property rights and eminent domain, has studied the case extensively and attended oral arguments before the justices when the case was heard earlier this year. She was not alone.

"It appeared as if the whole town of New London was there, and they practically booed and hissed at the questioning," said VanderVelde. "It was mostly householders who didn't want their properties condemned in the future."

She said the decision would likely have an enormous impact around the country because it will affect hundreds of economic development projects that rely on eminent domain powers to condemn land, often for use by private developers.

At issue is whether it can be considered public use under the Constitution for a city to condemn property as part of a privately driven economic development plan. New London cites previous Court decisions that allow the condemnation of public property if it is for a public good, such as cleaning up blight. Kelo, however, disputes the claim that her neighborhood is blighted. She also argues that since the city plans to turn her property over to a private developer that is not a public use. In addition, her home is not in the first phase of the proposed development and the developer may ultimately change its mind in the coming years and decide the land is not needed for the project as planned.

But VanderVelde said that after listening to the justices' lines of questioning and reviewing the transcripts several times, she thinks the High Court's final decision will be fractured. The justices' questions indicated that they are thinking along numerous lines about rules or tests to determine if an eminent domain condemnation is constitutional. Among them, how many people are affected by the public benefits that might result from the condemnation? Is the property being condemned by a governmental body acting in bad faith? Or, is there a relevant difference between economic development to aid a blighted community as compared to a merely economically depressed community?

Which tests the justices will ultimately arrive at are almost impossible to predict because of the number of factors in play, VanderVelde says. Nevertheless, she thinks Kelo has a chance of prevailing.

"If you had asked property law experts before the Supreme Court accepted this case, they would have said she has no chance," VanderVelde said. "But the fact they took the case means they might be looking more carefully at Kelo's rights in relation to earlier decisions."

NOTE TO EDITORS: VanderVelde is available for media interviews after the Supreme Court case issues its decision in the Kelo case. To arrange an interview, contact Tom Snee at tom-snee@uiowa.edu or at 319-384-0010.

STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Suite 371, Iowa City, Iowa 52242-2500.

MEDIA CONTACT: Tom Snee, 319-384-0010, tom-snee@uiowa.edu.