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IJ Works Wonders: IJ’s Advocacy Sparks State-based Pushback on Eminent Domain Abuse

As part of the Institute for Justice’s 30th Anniversary celebration (1991-2021), our “IJ Works Wonders” series looks back on IJ cases that fundamentally transformed the law and the lives of our clients.

Usually, we think of the U.S. Supreme Court as the leader in constitutional law. In 2006, however, the Ohio Supreme Court, in Norwood v. Horney, acted as the vanguard of a nationwide rejection of eminent domain for private use. Only the year before, the U.S. Supreme Court had said that taking someone’s home for “economic development”—the hope of more taxes and jobs—was a “public use” under the U.S. Constitution’s Fifth Amendment.

Joy Gamble was not intending to be one of the leaders of a nationwide legal revolution. She and her husband, Carl, just wanted to live peacefully in their home in Norwood, Ohio, where they had lived for decades. Instead, Joy ended up as the first wave in a sea change of the use of eminent domain in Ohio and throughout the country.

The city of Norwood wanted economic development, and it decided the way to get that was to take Joy’s home and the homes of her neighbors and hand the land over to a private developer to build a mixed-use development with retail, office space and apartments. The Institute for Justice represented Joy, Carl and their neighbors to oppose this taking for private use.

The Ohio Supreme Court’s decision vindicated the rights of Joy, Carl and their neighbors, who had fought for years to keep their homes. The decision helped Joy, but it also had important consequences for all home and business owners in Ohio and across the country.

Before the decision, Ohio had been one of the worst abusers of eminent domain. In the five years between 1998 and 2002, Ohio cities took or threatened 431 properties for 13 private projects. Homeowners in Willowick and other cities celebrated the immediate demise of ongoing attempts to take their property for private projects. What had been a steady stream of cities authorizing takings for private projects ended thanks to IJ’s advocacy. Cities now know better than to even try take private property for other private parties, and when they do, courts shoot them down.

The unanimous decision by a politically divided court presaged developments in legislatures throughout the country. Forty-four states changed their laws to make eminent domain for private development more difficult or impossible, and legislators worked across the aisle to get those laws passed.

Like the Ohio Supreme Court, high courts in Hawaii, Iowa, Maryland, Missouri, New Jersey, Oklahoma, Pennsylvania, Rhode Island, South Dakota and Utah, all imposed stricter constitutional limits on the use of eminent domain.

In Kelo, the U.S. Supreme Court noted that the states might provide more protection for home and business owners than the federal courts. And it was right. Counting state court decisions, state constitutional changes, and state statutory changes, 47 states decided to give owners more protection than the U.S. Supreme Court. Joy and Carl’s bravery in challenging the taking of their family home ended up helping thousands of home and business owners in Ohio and elsewhere.

Dana Berliner is IJ’s litigation director.

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