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“There are more instances of the abridgement of the freedom of the people by the gradual and silent encroachment of those in power, than by violent and sudden usurpation.”     James Madison

July 26, 2006

A Victory For Property Rights In Ohio

by Doug Mataconis

In January, I wrote about a case being argued before the Ohio Supreme Court that was, without question the first major test of local government eminent doman powers since the Supreme Court’s Kelo decision. The case involved the city of Norwood, near Cincinnati, and its attempt to use eminent domain to take the propety of homeowners who were holding out on accepting buyouts from a private developer. Today, the Ohio Supreme Court issued a unanimous ruling that Norwood’s attempted exercise of eminent domain was improper.

COLUMBUS, Ohio — The Ohio Supreme Court ruled unanimously on Wednesday that a Cincinnati suburb cannot take private property by eminent domain for a $125 million project of offices, shops and restaurants.

(…)

The court found that economic development isn’t a sufficient reason under the state constitution to justify taking homes.

In the ruling, Justice Maureen O’Connor said cities may consider economic benefits but that courts deciding such cases in the future must “apply heightened scrutiny” to assure private citizens’ property rights.

“For the individual property owner, the appropriation is not simply the seizure of a house,” she wrote. “It is the taking of a home _ the place where ancestors toiled, where families were raised, where memories were made,”

Targeting property because it is in a deteriorating area also is unconstitutional because the term is too vague and requires speculation, the court found.

O’Connor wrote that the court attempted in its decision to balance “two competing interests of great import in American democracy: the individual’s rights in the possession and security of property, and the sovereign’s power to take private property for the benefit of the community.”

Kudos to the Ohio Supreme Court for doing what the U.S. Supreme Court was apparently incapable of, standing up for property rights. And doing it unanimously no less.

And there’s a detailed analysis of the Supreme Court’s decision by Ilya Somin at The Volokh Conspiracy, who calls the decision “A Major Victory For Property Rights”

Further information can be found at the Ohio Supreme Court’s website. And a the full text of the opinion (in PDF format) can be found here.

More at Wizbang, The Volokh Conspiracy, and How Appealing

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7 Comments

  1. While this, on the face, seems like the OSC recognizing privacy rights, I am deeply concerned about the quote from O’Connor. “…the sovereign’s power” is an interesting phrase.

    Correct me if I’m wrong, but I don’t believe a US state meets the definition of sovereign. That boat sailed with the ratification of the constitution and was reaffirmed by the 14th Amendment.

    Second, other than describing monarchy, I’ve never hear it used by an American to mean anything other than internationally-recognized defensible property. O’Connor seems to use the “supreme authority” definition of sovereign, meaning state as master. For hopefully obvious reasons, I’m not too keen on pols, counselors, or bureaucrats holding that idea in their head for long, let alone putting it on paper.

    Comment by Brock — July 26, 2006 @ 1:35 pm
  2. Check that. Property rights, not privacy rights.

    Comment by Brock — July 27, 2006 @ 3:17 am
  3. [...] 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.” [...]

    Pingback by The Liberty Papers»Blog Archive » Norwood v. Horney: A Crushing Blow To Kelo — July 28, 2006 @ 9:11 am
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