When It comes to Eminent Domain, Don’t Trust the Talking Heads.

It seems like nature does imitate art. It was only a few days ago, on December 6th, that we took note in our post of that date, of folks without any discernible credentials in eminent domain, pontificating in public about the headline-grabbing condemnations in New York – like the Atlantic Yards project in Brooklyn, that was recently rubber-stamped by the New York Court of Appeals, and the more recent Kaur case in which the New York Appellate Division said “No!” to Columbia University’s effort to take over a neighborhood in Manhattanville, for its expansion, holding that the studies leading up to the finding of “blight” were so badly performed that the conclusion that the subject properties were blighted, was insubstantial and not a valid predicate for the taking. 

Now, we have just come across an item that makes our point in spades. The December 15th on-line post of Fox News has published a piece by Andrew J. Napolitano, identified as “Judge” and “Fox News Channel’s senior judicial analyst” (see Andrew J. Napolitano, We’re Still Wrangling over Eminent Domain, www.foxnews.com/opinion ) In it, Judge Napolitano sets out to inform the Great Unwashed about what’s what in eminent domain law. Perhaps, as they say in New York, he shoulda stood in bed. His effort reminds us of the Peanuts cartoon strip in which Lucy, the bossy little girl, informs her friends that knotty pine is made out of oak trees. So how does Judge Napolitano go wrong? Let us count the ways.

● First, he gives us a history lesson and tells us that in the olden days, when the U.S. Constitution was not yet a gleam in the eyes of folks like Madison and Jefferson, “when the government wanted private property for its own uses, or to give it to those it favored, it simply seized the property, without regard to the rights and wishes of its lawful owner….“ Er, not quite, Your Honor.  

Seizing land from its rightful owners is risky business that over the centuries has been a fruitful source of violent feuds among individuals, civil wars (see http://en.wikipedia.org/wiki/English_Civil_War), and is considered a casus belli among nations. When the British monarch, King John, forgot that, he found himself propped up against an oak tree in 1215, with a sword against his neck, and the Barons of England suggesting that the sword would be sheathed if His Majesty would kindly sign the Magna Carta that among other things, promised payment for property taken earlier and provided that “no freeman shall be disseized of his lands, except by the law of the land and the judgment of his peers.” His Majesty, being no fool, signed.  

Contrary to what many (most?) American judges seem to believe, for centuries before the enactment of the U.S. Constitution, British land takings (or cases of compulsory purchase, as they say over there) were tried in court, before juries. See DeKeyser’s Royal Hotel v. The King, 2 Ch. at 222 (1919) in which after reviewing British history, the British Court of Appeal tells us that at least after 1708 “the land of a subject could not be taken against his will except under provisions of an Act of Parliament,” and that “in default of agreement [on compensation] with the owners, the true value [was] to be ascertained by a jury.” And in the famous Case of the King’s Prerogative in Saltpetre, 77 Eng. Rep. 1294 (K.B. 1607), the King’s Bench held that where agents of the crown entered privately-owned land and removed quantities of saltpeter for the manufacture of munitions for the army, the crown would be immune to a claim of trespass (since this was an activity in defense of the realm), but it still had to pay for the removed saltpeter.

But what if the crown went ahead and just took private land lawlessly? You’ll find an answer to that in Baron De Bode’s Case, 8 Q.B. 854 (1845): a trial by jury. Concluded the court: “Therefore, to try the several issues above joined, the Sheriff of Middlesex is commanded that he cause to come before our said lady the Queen, . . . wheresoever she shall then be in England, twelve good and lawful men of the county of Middlesex, qualified as by law is required, by whom the truth of the matter may be better known. . . ” since the parties “have put themselves upon the said jury.”  

Second, contrary to what Judge Napolitano tells us, it is not true that “[m]ost of the litigation and nearly all published court decisions over government acquisition of private property are about ‘public use,’ not about just compensation.” Not even close, your Honor. For the past 35 years (since 1974 to be exact) your faithful servant has been editor and publisher of Just Compensation, a monthly report on eminent domain and inverse condemnation law. You can check it out by clicking on the phrase Just Compensation in the blogroll on the right side of this page. What that means is that your aforementioned servant has had to read every single cottonpickin’ published eminent domain and inverse condemnation opinion that came down during that time. Talk about suffering! To paraphrase that famous old song, nobody knows the drivel we have seen. 

Anyway, until about 1987, reported cases dealing with the right to take were so rare that we didn’t even have a separate category for them in the Just Compensation index. But in the mid-1980s their numbers began creeping up, and chastened by adverse comments of our subscribers who started complaining about having to find right-to-take cases under the catch-all phrase “Other Cases of Interest,” we added a separate section on right to take law in 1987. At that time, there would be a couple of right-to-take cases per month – now, it’s more like a half dozen. All this as opposed to some 30 or so montly cases involving compensation issues. Moreover, pace Judge Napolitano, right-to-take cases rarely involve issues of “public use.” Typically, the right to take is opposed on grounds of defective statutory authorization, lack of necessity, the failure to follow legislative authorization, excess condemnation, more necessary public use, etc. So we suggest that Judge Napolitano talk to some condemnation lawyers and ask them how many right-to-take cases they have tried in past 10-20 years, as opposed to how many compensation cases they tried or settled. In his 40+-year career as an eminent domain appellate lawyer, your faithful servant handled maybe three or four right to take cases (including the celebrated 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F.Supp.2d 1123 (D.D. Cal. 2001)), as opposed to scores of valuation cases. In fairness to Judge Napolitano, it’s those right-to-take cases that garner the most publicity and legal commentaries, so to a person not familiar with eminent domain law, the frequency of right-to-take cases may be perceived as greater than their actual numbers. 

Third, contrary to Judge Napolitano’s understanding that “strictly speaking,” neither the World Trade Center of blessed memory, nor the Lincoln Center in New York are owned by the government, they are. The former WTC was and its site is still owned by the New York & New Jersey Port Authority which, last time we looked, was a government entity – though “strictly speaking” to borrow Judge Napolitano’s expression, the Authority sure behaved like a private, entrepreneurial entity, and never mind all that “public use” baloney (see our take on that at https://gideonstrumpet.info/?p=282 ). But the WTC site is owned by the government, though it is under a lease to a poor fellow named Larry Silverstein, the holder of the world’s championship “Lucky Pierre” award – he leased WTC two weeks before 9/11. Ouch!  

And if Wikipedia is to be believed, the Lincoln Center was acquired by the State of New York which then transferred title to the City of New York, a government entity, though concededly it’s sometimes hard to believe that New York, New York, is indeed a public entity rather than an enterprise run for the benefit of local real estate moguls.

Correction: It appears that we got the wrong Napolitano. The author of that Fox post, is Andrew P. Napolitano, not Adrew J. Napolitano. We have no idea whether they are even related.