Quick Take Too Quick on the Draw

California’s late Chief Justice Roger Traynor once observed that there are notions embedded in the law that have never been cleaned and pressed and might disintegrate if they were. The Maryland Court of Appeals (that State’s highest court) has just done some cleaning and pressing of quick-take law, and guess what? It disintegrated.

Quick take (or prejudgment possession) is the procedure used in eminent domain cases whereby the condemnor obtains a court order granting it pre-judgment right of possession (and in some jurisdictions, title as well) without such frivolities as due process of law. Except in Florida and as of this year in California,  this is done without notice or hearing, and the hapless property owners are not even aware that this has happened to them until after the fact, when they are abruptly ordered to move out of their homes or businesses and to surrender possession. This is, of course, at varriance with procedures used in non-condemnation cases. Thus, in Fuentes v. Shevin the U.S. Supreme Court held that in a replevin action a plaintiff could not get possession of his own property before judgment, without prior notice to the property’ possessor and a hearing. The same is true in property forfeiture cases. In the James Good Realty case the Supreme Court held that the property of a person guilty of drug dealing could not be forfeited without prior notice and hearing. But no predeprivation notice and hearing in eminent domain cases, before the rightful owners of the property being taken are evicted from their homes and businesses.

Now, the Maryland court has put a stop to such shenanigans. In Sapero v. Baltimore (Md. 2007) 920 A.2d 1061, and Baltimore v. Valsamakis (Md. 2007) 916 A.2d 324 it held that before evicting the rightful owners from their homes and businesses the city had to show that there was some exigency requiring such prompt action. The court did so on local statutory grounds, so while this was good news it was not a big deal. But it became a big deal when the court also took a long overdue look at the constitutional aspects of this procedure. It held that the owners’ due process rights were violated by this procedure because it denied them the opportunity to conduct discovery necessary for the preparation of their defense to the taking. The court also noted that the city had been taking its sweet time in implementing this taking of property and started its planning process back in 1982. Since it thus proceeded in baronial leisure, it was difficult to see what the sudden hurry was about once the condemnation action was filed. The court thought that behaving in this fashion suggested that the city was using the truncated quick-take procedure as a litigation tactic to gain an unfair advanage over the owner.

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