Proposal 4, dubbed the ‘MI Home’ constitutional amendment by its legislative sponsor, Midland Republican Senator Tony Stamas, seeks to severely restrict government’s ability to use eminent domain, the government’s taking of private property.  The measure now brings before voters an issue that has a contentious history in courtrooms across the country. 

The question of just what “public use” means came to a head in a 2005 split decision by the United States Supreme Court in Kelo v. New London.  

After a Connecticut state agency declared the town of New London to be a “distressed municipality,” the city sought to transform a former 32-acre naval facility into a mixed-use development. The proposed “small urban village” would include a waterfront hotel, restaurants, retail, and office space and new homes. The project, as designed, would also require eminent domain takings of 115 private homes. 

Homeowners who fought the takings under eminent domain reached the U.S. Supreme Court with oral arguments on February 22, 2005. When the nation’s highest court issued a 5-4 ruling on June 23, 2005, it also signaled just how divisive an issue eminent domain remains. Two dissenting opinions countered the majority.  

Justice John Paul Stevens, appointed by President Gerald Ford in 1975, wrote for the majority and was joined by two other Republican appointees, Justices Anthony Kennedy and David Souter. Agreeing with them were two Democratic Clinton appointees, Justices Ruth Bader Ginsburg, and Stephen Breyer.

Justice Stevens began the ruling by speaking to the court’s “longstanding policy of deference to legislative judgments as to what public needs justify the use of takings power”.

Noting the extensive improvements that the lead plaintiff, Ms. Susette Kelo, had made to her home since 1997 as well as the nine other plaintiffs who together owned 15 properties in the affected area, the Associate Justice narrowly framed the court’ scope of deliberations: “whether a city’s decision to take property for the purpose of economic development satisfies the ‘public use’ requirement of the Fifth Amendment”.

The opinion concluded that “The Court declines to second guess the wisdom of the means the city has selected to effectuate its plan.”  

But Justice Sandra Day O’Connor wrote a dissenting view.

“This case returns for the first time in over 20 years to the hard question of when a purportedly ‘public purpose’ taking meets the public use requirement” wrote the now-retired Justice. “It presents an issue of first impression: Are economic development takings constitutional? I would hold that they are not.” 

But Justice Stevens statement in his opinion that “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power” triggered a nationwide wave of legislative initiatives.  

That wave has reached Michigan, a state that is still struggling to jumpstart its economy. Critics of Michigan Ballot Proposal 4 do point to the damage the measure could sustain to efforts to rebuild the state’s economy. But their larger point is that Michigan case law has eliminated the main factor that is driving consideration of similar amendments in other states are now considering.

That case law revolves around the state Supreme Court’s permission for Detroit, in 1981, to use eminent domain to facilitate the development of a new General Motors assembly plant and, 23 years later, the reversal of that decision by the current state Supreme Court.

In a Great Lakes Bulletin News Service interview earlier this month, Detroit Representative Steve Tobocman said that the Poletown decision “is taught to first-year law students throughout the country as the quintessential case permitting the use of eminent domain for economic development purposes.”

“Yet in 2004, in the Hathcock decision,” Representative Tobocman continued, “the Michigan Supreme Court reversed this 23-year precedent, ruling that private property could not be taken and given to a second private owner for economic development purposes.”