Oklahoma Supreme Court Rejects Kelo

Constitutional Amendment Still Needed To Close “Blight” Loophole and Fully Protect Property Owners

PRESS RELEASE: May 9, 2006

John Kramer
Lisa Knepper
(703) 682-9320

Arlington, Va.—In a landmark ruling issued today, the Oklahoma Supreme Court rejected the U.S. Supreme Court’s Kelo decision permitting eminent domain for private development, ruling instead in Board of County Commissioners of Muskogee County v. Lowery that economic development is not a constitutional reason to use eminent domain under the Oklahoma Constitution.  The Court originally heard the case in 2004, before the Kelo decision.

“It’s a great day for Oklahoma property owners,” said Dana Berliner, a senior attorney at the Institute for Justice, which filed a friend of the court brief in Lowery and litigated the Kelo case.  “The U.S. Supreme Court essentially read the Fifth Amendment out of the Constitution but said that states could give more protection to property owners.   The Oklahoma Supreme Court is right to reject the overwhelmingly despised Kelo decision.”

In Lowery, Muskogee County had sought to take an easement for water pipelines for a private electric generation plant.  The stated purpose of the condemnation was “economic development.”  Noting that the U.S. Supreme Court had explicitly reminded states that they did not have to follow the Kelo decision in interpreting their own constitutions, the Oklahoma Supreme Court then concluded that “our state constitutional eminent domain provisions place more stringent limitation on governmental eminent domain power than the limitations imposed by the Fifth Amendment of the U.S. Constitution.”

The Court noted its “constitutional obligation to protect and preserve the individual fundamental interest of private property ownership,” and cited several times to Justice Sandra Day O’Connor’s dissent in the Kelo case, writing, “To permit the inclusion of economic development alone in the category of ‘public use’ or ‘public purpose’ would blur the line between ‘public’ and ‘private’ so as to render our constitutional limitations on the power of eminent domain a nullity.  If property ownership in Oklahoma is to remain what the framers of our Constitution intended it to be, this we must not do.”

However, the Institute for Justice and its Castle Coalition grassroots arm warned that a constitutional amendment currently before the Oklahoma Legislature is still needed to fully protect property owners.

“The Court said that its decision does not apply to condemnations for ‘blight,’ and the definition of ‘blight’ under Oklahoma law is so broad that virtually any neighborhood would qualify,” added Berliner.   “After this decision, cities could switch to condemnations under the Neighborhood Redevelopment and Oklahoma Housing Authorities Acts.  While this is a wonderful and very important decision for property owners, it’s also one cities may be able to get around.”

“The Oklahoma legislature is currently considering sending a proposed constitutional amendment to voters that would close the ‘blight’ loophole left open by the Oklahoma Supreme Court.  That amendment is necessary to protect the homes, businesses, churches and farms in the state,” said Berliner.

Since the Kelo decision every state legislature in session has introduced legislation to reform eminent domain practices, and 18 states have passed laws that offer greater protections to property owners from eminent domain abuse.  The Ohio Supreme Court is also considering an eminent domain abuse case, the first to reach a state supreme court after the Kelo decision.  The Court heard the case in January and a ruling is expected soon.  In that case, the Institute for Justice represents homeowners challenging the taking of their property by the City of Norwood for a retail-shopping complex.

The Institute’s brief in the Lowery case was co-authored by Daniel P. Muino of Gibson, Dunn & Crutcher and assisted by Eric J. Groves of Oklahoma City.