Ohio Supreme Court Rules Unanimously To Protect Property From Eminent Domain Abuse

John Kramer
John Kramer · July 26, 2006

Arlington, Va.—Today, in an historic ruling, the Ohio Supreme Court unanimously held that the City of Norwood could not use eminent domain to take Carl and Joy Gamble’s home of 35 years, as well as the rental home of Joe Horney and tutoring center owned by Matthew Burton and Sanae Ichikawa Burton, for private development—specifically, a complex ofchain stores,condominiums and office spaceplanned bymillionaire developer Jeffrey Anderson and his Rookwood Partners.

In a unanimous and lengthy decision, the Court laid out a series of important legal opinions. The Ohio Supreme Court explicitly rejected the U.S. Supreme Court’s infamous Kelo decision of June 2005, in which that Court held that local governments can take property from one person and transfer it to another because the new owner might produce more taxes or more jobs than the current one—so-called “economic development.” Second, the Ohio Supreme Court ruled that state courts must apply “heightened scrutiny” to uses of eminent domain, especially when the property is being taken for use by another private party; according to the Court, lower Ohio courts should not simply rubber-stamp decisions by local government to take property. Next, the Court held that statutes authorizing the taking of property cannot be vague. The “deteriorating” standard used by Norwood “is a standardless standard,” and the Court rejected it. Finally, the Court struck down Ohio’s statute that allowed property to be taken even before an appeals court ruled that the taking was legal.

“This decision is a complete and total victory for Carl and Joy Gamble, Joe Horney, the Burtons and every home and business owner in the State of Ohio,” said Institute for Justice Senior Attorney Dana Berliner, who argued the case before the Ohio Supreme Court. “The Court stopped the abuse of eminent domain by Norwood and told Ohio courts that it is their job to enforce the Constitution and make sure that eminent domain really is for public use. Ohio has a terrible history of its cities abusing eminent domain for private development, and that abuse would have increased exponentially if the Court had ruled in favor of Norwood.”

“This decision will set an example for the entire country,” explained Scott Bullock, an IJ senior attorney. “Other states will look to Ohio’s well-reasoned opinion in setting their own constitutional standards. The decision also will affect future legislation in Ohio. The Court has just told the Legislature that it cannot use the kinds of vague and standardless definitions that are so common under current Ohio law. Today’s decision starts the reform of Ohio’s terrible eminent domain laws, but it is up to the Legislature to complete the task.”

“Our home is ours again!” exclaimed Joy Gamble. “The Ohio Supreme Court has stopped this piracy. Now all Ohioans are safe from the scourge of eminent domain for private profit.”

“The Ohio Supreme Court finally made us Americans again,” Carl Gamble added. “We haven’t had the heart or the will to see our home of more than 35 years since the City and the developer forced us out and fenced it off, but I’m sure we’ll be taking a ride back up there today. This is just terrific!”

Joy continued, “Our state Supreme Court did what the U.S. Supreme Court did not do; it protected our home. The Ohio Supreme Court protected small property owners from the overpowering and overbearing city governments and the greedy developers.”

Joy added, “We stuck this fight out, but this victory would not have been possible without the Institute for Justice. We can’t thank them enough for winning us back our home and our rights.”

For the time being, Carl and Joy will remain in their newly rented apartment in Kentucky, on which they have a lease for the next six months. Joy concluded, “We’re just going to let this decision settle in. But finally, our nightmare is over.”

“The Gambles deserved to win today and to get back what’s rightfully theirs—their home,” said Bert Gall, staff attorney at the Institute for Justice. “They’ve won this battle not just for themselves, but for every single person who owns a home or business in Ohio. They and all our clients are true American heroes.”

“Almost one year after the U.S. Supreme Court’s universally despised Kelo decision, the battle between ordinary Americans and the abusers of eminent domain—tax-hungry officials and land-hungry developers—continues,” said Chip Mellor, president and general counsel of the Institute. “Today’s decision by the Court marks an historic victory for home and business owners across the country. But this fight has to continue. The Institute for Justice and our Castle Coalition are dedicated to making sure that owners throughout the country are protected from eminent abuse.”

The Kelo case has touched off a revolution not only in state supreme courts, like Ohio’s, but in state legislatures throughout the country. Thus far, 30 state legislatures have passed laws giving greater protections for home and small business owners.