Dan King
Dan King · June 24, 2022

ARLINGTON, Va.—Yesterday, the Institute for Justice (IJ) submitted an amicus brief in a case before the Ohio Supreme Court, which could decide whether or not the government can take people’s land and give it to a private company without that company ever proving the land is necessary for the project. 

Ohio Power Company is seeking to build new power lines in rural Washington County. In order to do so, the company seeks to obtain easements from four different farms. The farmers don’t oppose all aspects of the easement—they understand power lines are a necessary public use. They simply argue the company doesn’t need all the land it wants to take. And under the Ohio Constitution, the company needs to prove that it is taking no more than needed for the new power lines. 

“The government should not be permitted to take people’s land and give it to private companies without that company proving to a court that the land is actually needed for a public use,” said IJ Attorney Brian Morris. 

In a unanimous 2006 decision, Norwood v. Horney, the Ohio Supreme Court correctly held that a city could not destroy people’s homes so that wealthier (and higher-taxed) people could move in. Applying meaningful review, the Court made clear that the forced transfer of one person’s property to give to another could not satisfy the constitutional requirement that eminent domain be for a public use. In today’s brief, IJ argues that this meaningful judicial review should also apply to the necessity of a taking. 

Norwood was an absolutely landmark decision and the Ohio Supreme Court should apply its same logic here to ensure no Ohioans are subjected to abusive eminent domain practices,” said IJ Attorney Daniel Nelson. 

When this case first began, the trial court ruled that Norwood’s meaningful review did not apply and that once a government agency says an eminent domain taking is necessary, there is an “irrebuttable presumption of necessity.” But under that logic, any time a power company says it needs to take private property for a new utility project, the assumption will always be that it needs all of the land it wants to take. 

However, when the farmers appealed the case, the 4th District Court of Appeals determined that Norwood did apply and that judicial review of the necessity of an eminent domain taking is a key function of the courts. IJ’s amicus brief calls on the Ohio Supreme Court to uphold the Appeals Court decision that Norwood applies. 

IJ is the nation’s leading defender of property rights and has challenged similar abuses of eminent domain. IJ represented the homeowners in Norwood. Additionally, IJ fought against eminent domain abuse in the United States Supreme Court case Kelo v. New London. The Kelo decision, which let a city take Susette Kelo’s home to give to a private company, was wrong. But it led to massive state-level reforms throughout the country. Norwood was one of strongest repudiations of the Supreme Court’s decision in Kelo.