Make Up Your Minds, Your Honors

Being a person of limited intellectual resources, your faithful servant has always had trouble understanding judicial attitudes when it comes to determinations of necessity in eminent domain cases. Maybe that’s because we are from California whose supreme court once held that though establishment of necessity is required by statute, issues going to establishment of necessity of public projects are altogether nonjusticiable, not even where the condemnation resolution authorizing a taking for a particular public project  is procured by fraud, bad faith or abuse of discretion. True, in 1976 our legislature modified that outrageous rule, so that necessity is now subject to limited judicial review, but our courts never retreated from their extremist position on that point one inch.

Taking people’s land is serious business. It is a great imposition on individual rights, and history teaches that invading other people’s turf is a fruitful source of feuds and wars. And so,  it seems only reasonable that in addition to an eminent domain taking being for “public use” as required by the Constitution, there should also be clear necessity for the taking.  After all, we don’t want bumbling bureaucrats running around, wasting the taxpayers’ money on projects that may be public but that are unnecessary because they serve no useful purpose.

For example, take what was once known as the Los Angeles “Intercontinental” Airport, out in the boondocks, in Palmdale. There, the city blew over $100,000,000 in the early 1970s, to acquire by eminent domain some 17,000 acres of desert land, only to have to face the reality that no airline could operate there successfully, and that eventually this grandiose  “intercontinental” boondoggle had to be shut down. 

On the other coast, there was New York City’s taking of downtown Manhattan land for a new New York Stock Exchange headquarters building, that was cancelled after the city blew some $109,000,000, with nothing to show for it. Then there was the Yonkers caper. Yonkers, New York, blew some $14,000,000 acquiring land for the expansion of an Otis Elevator factory, only to see Otis shut it down a few years later, and leave town, leaving the city holding the bag.

And who can overlook the current champion of such fiascos, the City of New London, Connecticut, that squandered over $80,000,000 in the notorious Kelo case with nothing to show for it? There, the city took an entire well-maintained, lower middle class neighborhood that was bulldozed to the ground in order to cater to well-paid professional employees of the nearby Pfizer corporation, with upscale shops and condos, only to see it all go down the drain when the city’s plans collapsed.  Adding insult to injury, Pfizer then announced that it is shutting down its New London facility and moving out of town, taking some 1400 jobs with it.

All these takings were deemed to be “public uses” even though none of them was necessary, and all of them blew fortunes in public funds, with nothing to show for it.

Still, in spite of this reality, judges have  it that their ability to adjudicate necessity for a public project is, practically speaking, nonexistent. Courts, including the U.S. Supreme Court, have taken the position that whether or not the proposed public project for which land is being taken is actually constructed, or can be constructed, is of no concern.

Take a recent Wisconsin case, Kauer v. Wisconsin Department of Transportation, 793 N.W.2d 99 (Wis.App. 2010) that just showed up in a batch of slip opinions that crossed our desk. In it, the condemnee-owners resisted the taking of their land for a road on the grounds that the proposed new road, though clearly a public use, would be unsafe, and they offered competenet engineering testimony to that effect. If you are a stranger to eminent domain, you may ask “So what?” Litigants disagree as to factual matters all the time, and judges get paid to listen to and resolve such disputes. So what’s the big deal? Ah, but this is eminent domain where fairness, logic and common sense often take an extended holiday.

What happened in the Kauer case was that the trial court granted summary judgment to D.O.T. in spite of the factual disagreement among experts about the new road’s safety. [NOTE: If you are not  a lawyer, be advised that a summary judgment is proper only where there is no dispute about material facts and the issue before the trial court is one of law.] So how come this departure from this basic, hornbook rule of law in eminent domain cases?

Believe it or not, the Wisconsin Court of Appeals went on about how limited are judicial powers when it comes to resolving such issues. When it comes to questions of necessity in eminent domain, said the court, there is an “understanding that neither judges nor juries are in the best position to decide issues such as the most appropriate design for a road.” Really? And here we thought that road safety is routinely passed on by judges and juries in tort cases when an injury occurs in a traffic accident and a plaintiff contends that it was caused by an unsafe road. 

To say nothing of environmetal review cases where those humble, modest, black-robed folks who wouldn’t dream of  “second guessing” government experts in eminent domain cases involving the issue of necessity, abruptly assume the mien of giants who freely and vigorously review and second-guess public project designs, resolve competing engineering opinions, and insist that the projects’ proponents consider all potential alternatives.

Maybe there are valid reasons for such shamelessly asymmetrical rulings by the courts. Maybe. But as far as we know, no court has articulated a rational reason why judging the safety of a public project is a commendable public service on the part of judges in tort and environmental cases, but a no-no in eminent domain litigation. Is a puzzlement, as the king put it in “Anna and the King of Siam.”

Come to think of it, in the only case known to us in which the U.S. Supreme Court addressed such matters [Allegeheny County v. Frank Mashuda Co., 360 U.S. 185 (1959)], it made it clear that eminent domain is no more endowed with “sovereign prerogative” than any other government activities that are freely subject to judicial review. So why the difference? Go figure.

In fact, in the Kauer case the Wisconsin court did concede that “there are appropriate forums for debating the safety of  DOT-approved road design, but a condemnation action is not one of them.”  (Emphasis in the original). Why not?  The court didn’t say.

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