It isn’t every day that an obituary sets one thinking about matters of eminent domain law. But it just happened in the case of the N.Y. Times obituary of judge Richard J. Cardamone of the U.S. Court of Appeals for the Second Circuit. Sam Roberts, Richard Cardamone, Judge Who Doomed Westway Project in Manhattan, Dies at 90, 10/25/15, at p. 23. Judge Cardamone opined in 1985 that the Corps of Engineers’ determination of compliance with environmental laws, and its issuance of a permit for the construction of the Westway highway project along the west side of Manhattan, was defective and would accordingly have to be vacated and redone. This was done even though, as the court conceded, “the voiding of the [Corps of Engineers’] permit may result in condemning the Westway project to oblivion.” Which it did.
So much for judicial protestations in eminent domain cases that when it comes to takings of land for public projects, they judges are pretty much limited to rubber-stamping condemnors’ determinations that the proposed taking is just hunky-dory public-use-wise – i.e., it’s “well-nigh conclusive.” And as for determinations of public necessity for the project, the US Supreme Court has told us, once public use is established, necessity for the public project is not a legal requirement under federal law, and the owner-condemnee is not even entitled on a hearing on this subject. As the Supreme Court put in in Bragg v. Weaver, 251 U.S. 57 (1919):
“Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment.”
In short, public necessity in eminent domain is weird stuff. Originally, the US Supreme Court justified takings of private property for others’ private use (like, for example, irrigation ditches and mine aerial tramways) on the ground that such uses were a matter of great necessity. As the court put it in Clark v. Nash, 198 U.S. 361, 369-370 (1905), such uses are deemed public “where it is absolutely necessary to enable [the private condemnor] to make any use whatever of his land, . . . which will be valuable only if water can be obtained.” 198 U.S. at 369-370. But a scant dozen years later, came Bragg v. Weaver, 251 U.S. 57, 58 (1919), and there went judicial review of public necessity, with the condemnee not even entitled to a hearing thereon, thereby unwittingly undercutting the holding of Clark v. Nash, which was based on a high level of necessity.
But the idea of taking land (and paying for it) where doing so is unnecessary, is so offensive to civic values that states took ostensible care of that problem by enacting statutes requiring a finding of public necessity before private property could be taken for public use. See e.g., Cal. Code Civ. Proc. § 1245.220. But even so, courts – with the exception of Florida — take the position that the question of necessity may not be inquired into unless there is fraud or bad faith on the part of the condemnor. Before 1976, California went further than that and held in the notorious Chevalier case that necessity is altogether nonjusticiable, even where there is fraud, bad faith or abuse of discretion by the condemnor. But in 1976, the California legislature made necessity justiciable in cases of gross abuse of discretion and bribery.
The reason for the courts’ reluctance to inquire into public necessity is said to be judges’ lack of background in matters of engineering and such, and their policy of unwillingness to “second guess” determinations by the legislative branch of government. For a discussion of this justification, see City of Chicago v. St. John’s United Church, 935 N.E.2d 1158, 1171 (Ill.App. 2010).
So far, so bad. But it gets worse — it’s an altogether different story outside the law of eminent domain. There, as illustrated by Judge Cardamone’s decision in the Westway case, the same judges who proclaim themselves incapable of judging questions of necessity in eminent domain cases, have to problem “second guessing” the expert public project builders in environmental review cases. Why? If you know, perhaps you can share that knowledge with your faithful servant who continues to be puzzled by judges’ professed inability to do in eminent domain cases what they routinely do in environmental review cases.