We have commented on this subject before, and today’s Los Angeles Times brings it back to mind forcefully. In Bettina Boxhall, He Had Control Over California’s Spigot, October 9, 2011, at p. A37, the Times tells the story of federal judge Oliver W. Wanger who has presided for years over the complex litigation involving decisions “how much water gets pumped from the Sacramento-San Joaquin Delta south to fields and cities and how much stays behind to sustain fish species pushed to the edge of extinction by the state’s thirst.” The article takes note of Judge Wanger’s harsh chewing out of federal government functionaries for what he called “deliberate deception and ‘bad faith’ on the part of the Interior Department.”
As far as this blog is concerned, however, of even greater significance is the Times’ tone of admiration for Judge Wanger and for his opinions as “several hundred pages long, replete with charts and technical analysis.” We were struck by this because when it comes to eminent domain, it’s a whole other story. There, courts (certainly federal courts) overwhelmingly take the position that a condemnor’s decision to take private property for a purported “public use” is “well-nigh conclusive,” and that the courts would never, ever dream of contradicting a condemnor’s decision to take on grounds similar to those used in overruling government decisions in environmental review cases. It gets really sticky when it comes to issues of public necessity. In federal law necesity is not considered at all. In state courts (with the exception of Florida which allows limited inquiry into necessity) judges take the position that, even when state statutes require findings of public necessity before a condemnation can proceed, they will not “second guess” the technical decisions of condemnors’ engineers and planners. Why the difference?
The only justifications we have been able to find in the case law for this judicial attitude in eminent domain cases is that judges are not competenet to pass judgment on the complex technical matters that go into the condemnor’s decision how much land is necessary to meet the project’s needs or whether better and cheaper alternatives exist. Those decisions, say the courts in eminent domain actions, are for the condemnor alone. Out here in California, until 1976 our Supreme Court took the position that issues going to public necessity were altogether nonjusticiable, even when the resolution of necessity (required by statute before a condemnation case could be filed) was procured by the condemnor through fraud, bad faith and abuse of discretion. In 1976, the California legislature repealed that rule and substituted for it one holding that resolutions of necessity are not conclusive when procured through “gross abuse of discretion” or bribery.
Particularly egregious are cases where the condemnee establishes that the proposed public projects cannot be constructed because of lack of public funds or a legal impediment to the project (such as for example, a county proposing to take land for a right-of-way through an Indian reservation). There is even a law review article on this subject. See Thomas J. Posey, This Land Is My Land: The Need For a Feasibility Test in Evidence of Taking for Public Necessity, 78 Chi.-Kent L. Rev. 1403 (2003), discussing several cases of that sort. It’s a pretty good read.
So we end this post with the inquiry that began it: if judges are perfectly capable of “second guessing” technical decisions of government fnctionaries and their technical experts in environmental review cases, how come thay lose that capability when the same parties appear in their courtrooms in the context of an eminent domain rather than an environmental review case?
We seem to recall a line attributed to California’s late Chief Justice Roger Traynor who observed that the hallmark of a good judicial decion is that it leaves the losing party with an understanding of why he lost. But it seems to us that no person with a moral compass can say that of judicial decisions that refuse to do in eminent domain cases what judges routinely do in environmental review cases.