Do-It-Yourself Eminent Domain Reform

Writing your own eminent domain revision? Here’s an analysis of some typical proposals in three states.

By John Ryskamp

This state’s proposed Constitutional amendment contains two key provisions:
  • “Private property may be taken or damaged for a stated public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. Private property may not be taken or damaged for private use.”

    It appears the authors meant to tighten up “public use” by mandating that it be “stated.” However, any formulation can be developed to satisfy this requirement, without changing the outcome in any eminent domain action. The problem is that no definition of “private use” is provided. In default of that, the courts would be likely to apply the traditional idea: “private”—forbidden—use is eminent domain used in violation of another law or as a result of some criminal violation.

  • “Private property may be taken by eminent domain only for a stated public use and only upon an independent judicial determination on the evidence that the condemnor has proven that no reasonable alternative exists. Property taken by eminent domain shall be owned and occupied by the condemnor or may be leased only to entities that are regulated by the Public Utilities Commission. All property that is taken by eminent domain shall be used only for the stated public use.”

    The eye-opener here is “no reasonable alternative.” Strict scrutiny says that the government action must be narrowly tailored to achieve a compelling government interest. “Narrowly tailored” is usually taken to mean that there is no reasonable alternative. Under this provision, therefore, it would appear that all eminent domain is subject to strict scrutiny. One wonders if the authors realize this, and if so, if they realize the level of opposition likely to develop by governments and private interests which have always used eminent domain under minimal scrutiny.

    Note that this provision provides strict scrutiny for housing with respect to eminent domain, and so immediately raises the question with respect to housing and other facts, in what other contexts they receive strict scrutiny? In the alternative, what is the likelihood that a pressured court would reconcile “no reasonable alternative” with “public use” to find that “no reasonable alternative” in this proposal, means “rationally related to a legitimate government purpose”—effectively gutting the proposal? Or does this language change the role of the State in the Federal system, making it impossible for the state to legislate for the general welfare? The owner, occupation and leasing provisions seem to be merely more invitations to creative evasion, and not likely to change the outcome of any eminent domain action.

The Connecticut General Assembly decided to conduct its review of eminent domain law through a specially convened Joint Judiciary and Planning and Development Committee, which began hearings on July 28, 2005. There seems to be a split between two provisions:
  • “Eminent domain shall not be exercised with respect to housing unless it is substantially related to an important government interest”
  • “Eminent domain shall not be exercised with respect to housing unless it is narrowly tailored to achieve a compelling government interest.”

These provisions immediately raised the question, what about eminent domain over a business which provides the income—that is, the maintenance—for its owner? Then is this an appropriate addition:
  • “Eminent domain shall not be exercised with respect to maintenance unless it is narrowly tailored to achieve a compelling government interest.”

Signing Alabama’s revision to eminent domain on August 3, 2005, Governor Robert Riley said: “What our new law does is restore the level of protection that existed prior to the Supreme Court's ruling in June,” even though the decision merely ratified previous rulings on eminent domain.

The Alabama law purportedly eliminated eminent domain for industrial, commercial, office, retail or residential development, but could be used to construct roads, public buildings and to remove blight; blight included areas which are obsolete, faulty in arrangement or design, or in danger of becoming blighted. As Dana Berliner, an IJ attorney, said of the blight provision: “All of these are ways of saying we'd like to construct something else here that has a different layout.” (The governor replied that he was willing to consider changes.)

The apparent exceptions to “economic development” are more problematic than the language about blight. In the case of a concept such as “economic development” which, as Justice Stevens pointed out, does not, in the first place, distinguish a different kind of eminent domain, making “exceptions” to “economic development” merely puts the question, what is the Constitution? We are back to square one; the concept of “exceptions” retards, rather than advances, the inquiry into eminent domain.

John Ryskamp: philneo2001@yahoo.com