The Liberty Papers

Duncan Currie writes in The Weekly Standard about Wednesday’s decision by the Ohio Supreme Court in Norwood v. Horney, which he calls a crushing blow to the rationale behind the infamous Kelo decision. Currie identifies three areas in which the Norwood decision undermines the rationale behind the U.S. Supreme Court’s decision in Kelo v. City of New London:

First: The Ohio High Court implicitly rejected the rationale behind Kelo. “Although economic factors may be considered in determining whether private property may be appropriated,” wrote Justice Maureen O’Connor, “the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement of Section 19, Article I of the Ohio Constitution.”

The Ohio Constitution’s public-use clause is essentially the same as the one in the Fifth Amendment to the U.S. Constitution, so the logic that the Ohio Supreme Court used in this regard applies equally to an analysis under the Federal Constitution.

Second: The court called for “heightened scrutiny when reviewing statutes that regulate the use of eminent-domain powers.”

Specifically, the Court rejected the city’s rationale, accepted by the trial court, that the use of eminent domain powers in this case was justified because the property in question was in danger of becoming “blighted.”

“We find that Norwood’s use of ‘deteriorating area’ as a standard for appropriation is void for vagueness,” wrote Justice O’Connor. “We further hold that the use of the term ‘deteriorating area’ as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking.” In plain English, that means Norwood grossly abused its authority. The mere possibility–or even probability–that an area may one day be blighted can hardly pass muster as legitimate grounds for property seizures. Indeed, by the yardsticks employed in Norwood–cracked sidewalks, light pollution, proximity to the highway, weeds, dead-end streets, and “diversity of ownership”–large bits of middle-class, suburban America are “deteriorating.”

The Court also struck down a portion of Ohio’s eminent doman law that made any appeal to the Courts pointless:

Third: The court rejected as unconstitutional the portion of Ohio’s eminent-domain statute that–get this–barred judges from enjoining the seizure and redevelopment of property prior to appellant review. The law had essentially allowed developers to tear down homes after they provided just compensation but before the completion of the appeals process. According to the Ohio Supremes, this “violates the separation-of-powers doctrine.”

In other words, Norwood v. Horney is, in some sense at least, the anti-Kelo. Obviously, the Ohio Supreme Court cannot overrule a decision of the United States Supreme Court. However, the ruling that the Justices from the Buckeye State have made will, hopefully, serve as the beginning of an argument that will see sanity returned to eminent domain law at the Federal level.

H/T: Wizbang

Previous Posts:

A Post-Kelo Test In Ohio
A Victory For Property Rights In Ohio