Kelo

“Little Pink House” Brings the Kelo Case to the Big Screen

An impressive new movie dramatizes the story behind the famous Supreme Court case about whether it is permissible for the government to condemn homes in order to promote private "economic development."

|The Volokh Conspiracy |

Catherine Keener as Susette Kelo in 'Little Pink House'
Catherine Keener as Susette Kelo in 'Little Pink House.'

The soon-to-be-released independent film Little Pink House dramatizes the story behind Kelo v. City of New London, the notorious 2005 Supreme Court decision in which the justices ruled that it is permissible for the government to condemn homes in order to promote "economic development." Although the Fifth Amendment only permits the taking of private property for "public use," a narrow 5-4 majority ruled that a taking that transfers property to private developers is permissible. The Kelo case generated a massive public reaction, with over 80% of Americans opposing the ruling, and 45 states passing reform laws intended to restrict the use of eminent domain for private development. No other case united such disparate people and groups as the NAACP, libertarian property rights advocates, Ralph Nader, and Rush Limbaugh.

Little Pink House, loosely based on journalist Jeff Benedict's book of the same name, does an excellent job of portraying the human drama that led to Supreme Court decision. It shows how a group of lower-middle class New London, Connecticut homeowners found themselves steamrolled by a plan to take their land in order to facilitate a development project backed by powerful political forces, including Connecticut Governor John Rowland, the New London Development Corporation (the private organization that planned and conducted the takings on behalf of the City of New London), and Pfizer, Inc., a major pharmaceutical firm that hoped to benefit from the development project. The film depicts how Susette Kelo—owner of the iconic "Little Pink House" that became a nationally known symbol of the case—and her neighbors did all they could to resist the seizure of their land through the political process, but were overmatched by powerful opponents. It also portrays some (but by no means all) of the extralegal harrassment by which the NLDC sought to pressure owners to sell "voluntarily." These shenanigans included such tactics as menacing late night phone calls, dumping of waste on the resisting owners' property, and locking out tenants during cold winter weather.

Susette Kelo's famous 'Little Pink House'
Susette Kelo's famous 'Little Pink House,' 2004. Photo by Isaac Reese.

The film movingly depics the pain and desperation of people faced with the loss of their homes, without any effective recourse. The multiyear legal and political battle over the takings was an excruciating ordeal for those involved. As Richard Beyer told me in an interview, he and the other property owners felt as if they were "living in our own prison" during the "whole period" of litigation.

The movie also effectively conveys the role of the Institute for Justice (IJ), the libertarian public interest law firm that represented the property owners on a pro bono basis, and took the case all the way up to the Connecticut Supreme Court and the federal Supreme Court. There is no better cinematic portrayal of how a public interest law firm like IJ, the NAACP Legal Defense Fund, or the ACLU operates: simultaneously litigating cases in both the courtroom and the court of public opinion.

The film even manages to accurately depict some key aspects of the main legal issue at stake in the litigation: is the correct definition of "public use" broad enough to encompass anything that might benefit the public in some way, or is it limited to publicly owned projects or private ones that have a legal duty to serve the entire public, such as a public utility? As the film shows, one of the key moments in the case came when Justice Sandra Day O'Connor asked New London's lawyer whether it would be permissible to condemn a Motel 6 in order to replace it with a Ritz Carlton simply because the latter might produce more tax revenue: he answered yes.

The movie necessarily omits or simplifies some key aspects of the Kelo story. Most of the property owners' side of the tale is seen through the eyes of Susette Kelo, whom IJ chose as the main public face of the case in part because she is charismatic and very effective in media appearances. As with other iconic Supreme Court cases, such as Brown v. Board of Education and Tinker v. Des Moines, the person whose name is listed first became nationally famous, while other participants are often overlooked.

The focus on Susette Kelo is understandable. But it comes at the cost of downplaying the stories of the others, some of whom probably suffered even greater anguish than she did. For example, Wilhelmina Dery, who was in her eighties, had lived in the same house her whole life, and adamantly refused to leave. The Cristofaro family were also strongly attached to their property, which they had purchased decades earlier after their previous home had been condemned as part of an urban renewal project. Both Wilhemina Dery and Margherita Cristofaro passed away during the course of the litigation. Relatives believe that their deaths may have been hastened by the stress of the ongoing legal battle.

The constitutional issues in the case were also unavoidably compressed. For example, the movie could not be expected to convey the ways in which Kelo built on real (and imagined) imagined prior precedent, and how the case looks through the lense of originalist and living constitution approaches to constitutional interpretation. The movie also only briefly touches on the dramatic political reaction generated by Kelo, and the resulting reform movement. I discuss both the legal issues in Kelo, and the dramatic aftermath of the case in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

For legal reasons, the names of most of the people involved on the NLDC and New London side of the litigation were changed in the movie. These individuals probably will not be happy about the way their analogues are portrayed. But I believe the film accurately portrays their genuine belief that they were acting to promote the public good. For the most part, these were not cackling villains, but people who honestly thought that forcibly displacing homeowners was the best way to revitalized an economically depressed community. The movie also, however, conveys their blindness to crucial flaws in the NLDC development plan, and inability to understand how their actions would be perceived by the public.

Sadly, the the ill-conceived NLDC development project fell through, and the condemned property remains empty to this day, occupied only by a colony of feral cats.

Feral cat on one of the properties condemned as a result of the Kelo case, March 2011. Photo by Jackson Kuhl.
Feral cat on one of the properties condemned as a result of the Kelo case, March 2011. Photo by Jackson Kuhl.

The pain caused by the Kelo condemnations and litigation was far from entirely in vain, however. It led to valuable—even if incomplete—reforms in many states, and broke the seeming consensus in favor of a broad view of "public use." The Supreme Court might well overrule or limit Kelo in a future decision. In the meantime, it is hard to find a better cinematic dramatization of a famous Supreme Court decision than Little Pink House.

The film will be released this weekend, with showings scheduled at times and places listed here.

DISCLOSURE: I had a very minor role as an unpaid informal adviser to the producers of Little Pink House, offering a few suggestions based on my research on the case. I have also done pro bono legal work for the Institute for Justice on a number of property rights cases. I do not have any financial stake in the film. My view of the movie is, however, unavoidably influenced by personal knowledge of many of the people depicted.

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67 responses to ““Little Pink House” Brings the Kelo Case to the Big Screen

  1. Very curious, as an interested non-lawyer. Disregarding whether or not the government should be able to pass on a taking to a private contractor. can someone give me a Reader’s Digest version of the legal basis for the opinions for and against? I have a hard time believing it’s as simple as 5 justices saying “I think this is a good idea, so let’s find a reason to allow it” and 4 justices saying “I hate this idea, so let’s find a reason to ban it”. This has always seemed to me to be an issue where people want the SCOTUS to be the legislators, crossing that fine line between determining what the Constitution says the government can do and outright setting the rules for what the government can do.

    1. I believe it really does come down to who knows best — the state, or individuals?

      The statists really do think that yes, displacing a Motel 6 for a higher end hotel is better for the community because it generates more tax dollars. Same thing for displacing the little pink house community for a big corporate development — more tax dollars, more jobs, what’s wrong with that?

      Looking any deeper is a wast of time.

      1. A fairer summary of the majority argument is that urban blight is a public problem, and ameliorating it is a public purpose. Hence condemnation for that purpose, even if it involves private development, falls with in the “public use” requirement of the Takings Clause. Moreover, it is unreasonable to allow individual holdouts to obtain a windfall where the vast majority of the affected residents approve of the plan.

        I don’t necessarily agree with this, especially where is concerns actual homeowners (as opposed to tenants, landlords or commercial property owners), but that is how I understand it in a nutshell

        1. “Moreover, it is unreasonable to allow individual holdouts to obtain a windfall where the vast majority of the affected residents approve of the plan.”

          I might buy that, if any only if the affected residents actually had a meaningful opportunity to approve or reject the plan before the government moved to take a single property.

          If the affected residents didn’t have a meaningful opportunity to reject the plan then I consider any approval to be under duress and therefore void. A meaningful opportunity to reject the plan would require a binding referendum of the affected residents/property owners and only the affected residents/property owners, and a no vote means the project dies a permanent death.

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        2. “Moreover, it is unreasonable to allow individual holdouts to obtain a windfall where the vast majority of the affected residents approve of the plan.”

          Hey, this is America and everythingnis for sale. The property owner has a right to set the price for his property. If that price is too high for the prospective buyer, then he shoukd not be allowed to use government to force the sale.

          This was not a condemnation for a school or highway?it was for the enrichment of private companies. That is not fair and it violates private property rights, the foundation of our freedoms.

          The Kelo decision was shameful and should be overturned.

      2. A fairer summary of the majority argument is that urban blight is a public problem, and ameliorating it is a public purpose. Hence condemnation for that purpose, even if it involves private development, falls with in the “public use” requirement of the Takings Clause. Moreover, it is unreasonable to allow individual holdouts to obtain a windfall where the vast majority of the affected residents approve of the plan.

        I don’t necessarily agree with this, especially where is concerns actual homeowners (as opposed to tenants, landlords or commercial property owners), but that is how I understand it in a nutshell

        1. “A fairer summary of the majority argument is that urban blight is a public problem, and ameliorating it is a public purpose.”

          The problem is in this particular case, the taking ultimately resulted in increasing blight not ameliorating it.

          The government shouldn’t get to say “we think (on no evidence, just pure speculation) that this project will ameliorate blight” and have that be the end of it.

          1. “The government shouldn’t get to say “we think (on no evidence, just pure speculation) that this project will ameliorate blight” and have that be the end of it.”

            And you want nine judges with no experience whatsoever in development to weigh in on that? So what do you want? Heightened scrutiny? Informed how? Brandeis briefs?

            Justice O’Conner didn’t call for heightened scrutiny; she said transfers to economic developments were not public uses, full stop.

            Somebody has to make the decision. It’s either going to be an elected legislature or unelected federal judges.

            1. Kelo had nothing to do with blight. It was simply about the transfer of property from one private party to another in the name of economic development.

              From the majority opinion: “There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.”

              1. I was borrowing blight from Matthew.

      3. “I believe it really does come down to who knows best — the state, or individuals?”

        You really believe the judicial opinion about whether Kelo involved a proper taking reduces to “statists” taking for the sake of taking?

        1. Hell yes. Judges are as biased as everybody else. If you actually think judges are impartial truth seekers, then explain split appeals decisions. Hell, explain Kelo’s 4-5 decision.

          1. If judges are as biased as everybody else, it wouldn’t matter if they punted the issue. As for how to explain the 5-4 decision, why would I rely on your speculation about statists, rather than the opinions themselves? The majority opinion is about deference to legislators. No mention of statism at all. It’s judicial minimalism at its very best.

            1. The BoR is supposed to protect us from arbitrary abuses of power by the majority. lt was judicial abdication at its worst.

              1. The BoR was not intended to protect anyone from abuses by states. And there’s not even clear language in COTUS establishing judicial review as the remedy.

        2. Not being flippant, I really do mean that. Only someone who thinks the state deserves the benefit of the doubt will go out of their way to misdefine “pubic purpose” as meaning “anything the state wants”.

          1. Someone who knee-jerk decides the state is always wrong without checking the facts is as much of an unthinking zealot as any ‘statist’ you can conjure.

            1. When the state has shown itself incompetent 99% of the time, it’s a pretty good bet that future actions will also be incompetent.

              And judging by your ability to diagnose me, you also are on the losing side.

            2. How is not giving the state the benefit of the doubt the same as assuming the state is always wrong?

              1. SR&C is not talking about the benefit of the doubt, he’s talking about reflexive hostility. That’s a worldview that has the virtues of simplicity and righteousness, but not much else.

            3. Whereas you seem to think that the State is infallible, and that no one can contest their decrees. The phrase, “nor shall private property be taken for public use,” appears only to contemplate a taking by government for use by the public, as opposed to a forced sale to benefit a third party.

              Do the actual words of COTUS count for anything with you?

              1. Those ain’t my goalposts. Looks like you excluded the middle between ‘government always bad’ and ‘government always good.’

          2. How else would you define “pub[l]ic purpose” besides what the state wants as expressed through democratic institutions? Do you get to decide?

            1. The 5Am and CT’s constitution use the phrase “public use.” lf those words are to mean anything, whether the proposed taking would have benefited the public should have been irrelevant. What l object to is judges rewriting statutes and even COTUS itself to achieve their preferred outcome.

              1. Not even the 4 dissent disputed that “public use” could include giving to another private entity. From O’Connor’s dissent:

                “Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use?such as with a railroad, a public utility, or a stadium.”

                Don’t leave us in suspense, what sorts of transfers do you think the 5A authorizes? Do you even think the 5A applies to the states on originalist grounds?

                1. Airports ostensibly qualify as “public use.” A transfer to lBM for a parking lot, not so much.

                  As the CT constitution uses the same phrase, we shouldn’t have had to have worried about incorporation, but under the 5/14, originalism draws the line near O’Connor.

                2. IDK. Most utilities are ‘private corporations,’ yet few doubt that land can’t be taken to build a powerline.

            2. How else would you define “pub[l]ic purpose” besides what the state wants as expressed through democratic institutions? Do you get to decide?

              You’re pulling the same sleight of hand as the Kelo majority. The constitution says public use, not public “purpose.”

              1. DN: “You’re pulling the same sleight of hand as the Kelo majority.”

                Coming from someone as disingenuous as you, that is a bit of a hoot.

                The distinction is easy to wrap one’s brain around. “Public use” is direct (e.g., airports, roads), whereas “a public purpose” would be more tenuous and indirect (e.g., urban renewal).

                As Justice Gorsuch wrote, “[v]ague laws invite arbitrary power.” (Still want you to tell me what “mentally fit to be a lawyer” means, and how you can apply that standard without the obvious potential for arbitrary and capricious enforcement.) A written constitution cabins in magisterial discretion, and in a way that can be downright inconvenient. But we value the individual right to own property, and for good or ill, we created that standard. COTUS could have said “public purpose,” but it did not.

                Kelo was judicial overreach.

                1. Don’t you mean underreach? SCOTUS wasn’t doing the taking.

              2. I was pulling public purpose from someone else. The majority was pulling public purpose from years of jurisprudence referring to public purpose. That public purpose is permitted as a basis for a taking under the 5A was not disputed by the dissent.

    2. In favor of the project: the Supreme Court case which led to the condemnation and revitalization of the Washington, D.C., Southeast Waterfront, a huge project (that might have been a government project).

    3. Well, the State of Connecticut also had a say, as they have legislative authority to limit takings.

      So too does the City of New London, which authorized the takings.

      So it seems to me that sufficient legislating was done by the appropriate representative bodies . . .

      1. That’s the point. lf the words of the state constitution are to mean anything, takings can only be effected for public use. The city government can only wield the power that it has.

  2. “a taking that transfers property to private developers is permissible”

    If the private development was clearly for a public purpose — various ones can be imagined such as let’s say a road or railroad that served the public to travel to the nation’s capital — this is clearly permissible.

    “steamrolled by a plan to take their land”

    That is, supported by people or public institutions appointed by said people, they elected. It is quite important to examine if this is done correctly though that might be different than it be unconstitutional. As Kennedy noted in his concurring opinion, e.g., there are various safeguards in place in that respect.

    “without any effective recourse”

    Yes, a legal taking, with compensation [which can factor in personal value such as of a home], is allowed.

    One thing notable to me here is that a home is involved. This to me raises potentially Fourth Amendment interests. The general argument against this sort of taking — which a range of states allowed and states still have the discretion to (in various ways as compared to a one size fits all national rule — if federalism is your thing) limit it — would apply to an empty lot as much as a home.

    Then, again, a legitimate taking, even for a totally unnecessary thing (e.g., some unnecessary road or museum serving the public), can include a home. But, this would have personal effects and it’s good to examine them.

    1. [add to top / space limit]

      I find constitutional cases quite interesting and repeatedly have interesting personal stories (the Landmark Cases series on C-SPAN, Josh Blackman was a guest, suggests this) so movies of this sort are appreciated generally speaking. The merits of the case might be a different matter.

  3. I still believe that Midkiff was a far more egregious decision than Kelo as far as Takings cases go. I feel the efforts of reforming to address Kelo miss all the other ways that eminent domain can be abused and how they can still be abused even by states that have tried to reform it.

  4. I continue to believe that most of the controversy comes from the concept of “compensation.” Even granting that purely idiosyncratic housing values will not be compensable, the niggardly attitude towards compensation makes this way more difficult than it need be, There are few plaintiffs who could not be made objectively better off (albeit not subjectively, I grant) if gov’ts were simply more generous. Indeed, lots of people would actually *compete* to have their property “taken” if this were done fairly.

    1. In fact, many people don’t object to the taking due to the compensation, including many of the people whose land was taken by New London.

    2. I’m not sure why at least some “purely idiosyncratic” values shouldn’t be compensated. There may well be concrete and sensible, if not easily quantifiable, reasons for people to value their homes at well above market value.

      Even leaving those subjective values out it seems clear to me that the ancillary costs of having one’s home taken ought to be reimbursed. That would include moving costs, possibly the loss of a favorable mortgage, some amount for the trouble of finding a new place.

      1. Concur entirely. The law should make you whole, and the costs of litigation alone are an added burden.

    3. I agree; so much of the anger and reform efforts in this area are barking up the wrong tree (hello Reason.com). A few simple tweaks like the landowner gets 125% of FMV (to account for costs associated with moving and/or lost expectation value) would go a long way.

      Another sensible reform is the landowner gets to choose between the ‘FMV of the property seized’ and ‘decrease of the total value of their holdings’ e.g., a power line easement affects the value of the property immediately below the line *and* the value of the adjacent parcel.

  5. The liberal side (except for Kennedy) of the court ruled against the lower-middle class New London, Connecticut homeowners.

    “STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.”

  6. “liberal side (except for Kennedy)”

    Why the exclusion? Kennedy is on the liberal side.

    1. I do like how obsessed you are with ideological boxes. The Tribes must be clear!!

      But you even lose in your own dumb game. Do you dispute that when there’s a split, Kennedy still votes with conservatives more than liberals, Bob?

      1. I like how you make more effort to get snide remarks and “gotchas” at people who disagree with you than ever substantively engaging them or just ignoring.

        1. Cranky from Ohio asserted that Kennedy is a liberal.

          Sarcastro asserted that Kennedy (as a Republican nominated by a Republican) votes with conservatives more than with liberals in response to an unsupported claim that Kennedy is a liberal.

          Gormadoc, rather than engaging with that reasonable and relevant assertion, whimpered a bit.

          Carry on, guys.

          1. Sarc is here to troll. Might even be a sockpuppet.

        2. That is his m.o. He’s here to gaslight.

          1. Disagree with you and suddenly both my motives and sincerity are suspect.

            Welp.

        3. Sarcastr0 asked an answerable question. Bob from Ohio was just engaging in snark. Why don’t you just engage the question Sarcastr0 asked? It’s there laying in wait.

          1. He persists in eliding my answerable questions all the time.

            A frightening array of Americans have strayed so far to the right that David Duke is regarded as a liberal. But that is largely beside the point.

            Kennedy has his own view of the world — libertarian on social issues, but a reliable conservative on economic issues. But Kagan’s Problem of Platonic Guardians doesn’t go away.

            Judge Laurence Silberman of the D.C. Court of Appeals recently confessed that he was “in despair” about the United States Supreme Court, noting that every one of the justices “is guilty, to one degree or another, of violating the two most basic rules of restrained judicial behavior: ruling only on questions presented by the case at hand, and interpreting precedents honestly.” Benjamin Wittes, “Without Precedent,” Atlantic Monthly, Sept. 2005.

            We are ruled by five lawyers in black robws … but Sarc/David doesn’t see a problem eith it.

            1. Judge Laurence Silberman of the D.C. Court of Appeals recently confessed

              In much the same way that President George Bush recently named Condoleeza Rice as Secretary of State.

              1. Obsessively picking nits again, in furtherance of your personal vendetta.

                Llewellyn. Monroe Freedman. Silberman. Posner. Kozinski. Dershowitz. They all say it, as do hundreds more. Judges regularly take indecent liberties with the facts and the law to arrive at the outcomes they personally prefer. The result is not law, but fiat. And you don’t find this problematic?

                Are you representing Wayne LaPierre?

                And l can’t help but note that a man from freakin’ New Jersey would not consider the fact that high public officials might be corrupt. https://www.youtube.com/watch?v=VKHV0LLvhXM

  7. Rush Limbaugh? Is he one of those ‘hate the eminent domain (when lathering up the yahoos), love the abuser of eminent domain (when lathering up the goobers)’ kooks?

  8. Libertarian geek bait!

  9. Tell me why the takings snarl couldn’t be cleared up with 4 simple-to-follow rules.

    1. Public purpose means an explicitly described ongoing public purpose, not an evanescent public objective.

    2. Cases where the ongoing public purpose will be operated by the government itself are open-and-shut legitimate takings. The legitimacy of the purpose itself as a government activity is a question of public policy. That is to be decided by political process, not subject to judicial review.

    3. Cases where a private party will operate the ongoing public purpose require a test to judge whether condition 1 is legitimately met by whatever it is the private party will do continuously with the taken property. That will be subject to judicial review.

    4. Third parties, who act as intermediaries between the government and the ongoing-purpose-pursuers, are right out. Transfer of taken property to any intermediary which will not itself employ the property continuously in pursuit of the named public purpose?whether the intermediary is public or private?is not a legitimate taking.

    What doesn’t that cover? Is there something to add?

    1. You got it dead-solid perfect, imho. But l thought the framers of the two constitutions did that by using the words “public use,” as opposed to the broader “public purpose.”

      Unfortunately, judges routinely decide who they want to win, and massage the facts and law to make it so.

      1. Thank you.

        I agree with you about “public use.” Should have said that instead of “public purpose,” each place it appears.

    2. >What doesn’t that cover? Is there something to add?

      1) temporary easements e.g., divert traffic through an area while building an overpass? Blight?
      2) blesses everything if the government is a nominal landlord?
      3) standard of review?
      4) there might be tax reasons to do this

      1. 1. Yeah, it rules out takings for “blight.” That’s one of those evanescent public objectives, not a continuing public use. I think that’s a feature. You may disagree.

        2. Nominal landlord? No, public use operator. Army base, operated by government, that sort of thing. But also, not a new national park, leased out to private industry to operate. No takings for that. Privatization generally is a troubling motive for use of the takings power.

        3. Are you suggesting you want courts to use elevated levels of scrutiny to keep the things government does within policy bounds the courts approve?

        4. When you say there might be tax reasons, do you mean government tax reasons, or private tax reasons? I’m having trouble figuring out why the takings power should ever become enmeshed in some private tax optimization scheme. But I probably misunderstand what you are getting at. Can you say more?

  10. Dari pendapat mayoritas: “Tidak ada dugaan bahwa salah satu dari properti ini dirusak atau dalam kondisi buruk; melainkan, mereka dikutuk hanya karena mereka kebetulan berada di daerah pengembangan.”

  11. Stevens Kelo opinion highlights his dishonesty that stands out in many of his opinions and dissents and his disregard of clear language in the constitution

    Kelo – private benefit morphs into “public use”
    McDonald – All laws in 14A morphs into we can pick and chose which amendments to incorporate
    Heller – Historical writings of the individual right never existed – yet never acknowledges the large body historical facts or acknowledges scalia’s citations
    CU – Congress shall make no law – except to abridge political speech we dont like.

  12. This is why, until a few years ago, making up a drug dealer story out of whole cloth and applying civil forfeiture to property the government desires is easier than condemning.

  13. Keslo is one of the most heinous decisions ever rendered by the SCOTUS. A monstrosity for individual liberty and personal rights. Hopefully when Kennedy and Ginsburg leave the Bench Trump will be able to place more Jurists who follow the Constitution. Many progressive cases which gutted the Constitution and Bill of Rights can be revisited to correct.

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