2/18/2007

Eminent domain lawyers - verdict is unusual but not unprecedented: Telluride CO Daily Planet, 2/16/07

Jurors often sympathize with landowners over governments

By Reilly Capps

When a Delta County jury gave the San Miguel Valley Corporation exactly what it asked for, it handed down the kind of one-sided verdict juries rarely choose.

“It's rather unusual,” said Ken Skogg, a Denver lawyer who specializes in eminent domain cases. “Generally in condemnation actions, the numbers usually come in as a kind of King Solomon result. There's usually a split-the-baby approach.

“Rarely is the verdict spot-on for one side or the other.”

Jurors usually take into account arguments from both sides and weigh them against each other, Skogg said. The facts often swing the jury in one direction or another, finding more for the landowner or more for the government.

So in order for them to completely agree with one side - as they apparently did with the San Miguel Valley Corporation - they have to be swayed by something more than facts.

“Usually it requires some sort of emotional reaction on the part of the commission or jury,” said Skogg, who works for the firm of Lowe, Fell and Skogg. “It suggests to me that the jurors were either very moved and motivated to find the landowner's evidence persuasive and credible, or they were in some way repulsed by the evidence that was presented by the condemning authority.”

The Town of Telluride can appeal the decision to the Colorado Court of Appeals, and from there it could be referred to the Colorado Supreme Court.

In an appeal, the town would not simply dispute the $50 million number, Skogg said. They would have to appeal some decision made by the court. They could, for example, appeal the introduction or exclusion of some piece of evidence, or the inclusion of a juror into the jury panel.

The jurors in this case appeared to sympathize heavily with the landowner. At least one juror told the Planet that they wanted to give the landowner more than SMVC asked for, possibly as much as $65 million.

That's an usual move, Skogg said.

“It's not unprecedented, but it's also fairly rare,” said Skogg. “Once in a while you'll have a juror or two jurors that have such feelings, but they're sometimes reigned in by the other jurors.”

Finding so heavily in favor of the landowner may be rare. But sympathizing with the landowner instead of the government is not unusual.

“I think it's hard to generalize, but I think very often that juries tend to sympathize with individual citizens over governments,” said Paul Boudreaux, a specialist in eminent domain law and associate professor at Stetson University College of Law in Tampa Bay, Fla. “They often end up doing well.”

The individual citizen in this case is Neal Blue, CEO of General Atomics. While a wealthy man like Blue may not be as sympathetic as a small, family farmer, jurors have a tendency to view all governments as overbearing and greedy.

“The phrase the lawyers often use is that jurors often view the government as having ‘deep pockets,'” said Boudreaux. “And so government claims about money are often less sympathetic to jurors.”

How deep are Telluride's pockets? That will be revealed in the next days or months, as Telluride taps private funding pay the at-least $16 million gap between the money it has and the money it needs.

Boudreaux said it is not uncommon for the “deep pockets” assumption of jurors to be wrong. Verdicts sometimes come in at a price higher than the government can afford.

In those cases, the governments give up, pay off the lawyers, and walk away.

“Governments can simply, quietly, essentially revoke their process of eminent domain,” Boudreaux said.

Lawyers arguing for landowners in eminent domain cases are often aware of the bias jurors have in favor of landowners.

“I think the lawyers certainly are aware of that,” Boudreaux said, “and they factor that into their arguments.”

Lawyers for the San Miguel Valley Corporation almost certainly would have known that a bias existed in favor of landowners, especially in a place like Delta.

In rural, farm and ranch communities such as Delta, people are often skeptical of the government and pro-private property rights.

Some celebrated the verdict as a slap on the wrist of the government's overreaching hand.

Debbie Schum is the Western Slope Outreach director for the Colorado Libertarian party. She's a strong opponent of the government's right to take away land.

While she wishes governments weren't even allowed to take condemnation cases to court, she was pleased by the verdict.

“In some ways [the verdict] is a victory, in that [the land] didn't just get taken away for a nominal fee, but some real value has been attached for the property owners,” Schum said. “That's a step closer to our society acknowledging the value of property ownership.”

She said she was not surprised that a Delta jury sided heavily with the landowner.

“There is a bigger value on property ownership here in Delta County,” said Schum. “We're still very agricultural here, there's still a big libertarian streak here in Delta County.”

Delta County hates government regulations to the point that it doesn't have zoning or building codes, Schum said.

“We don't just not have building codes because nobody got around to it or people don't care,” said Schum. “The citizens do not want building codes. We would prefer to see growth happen the way it's going to happen.”

Delta is now considering an eminent domain action to create a reservoir. But Schum said a great many Delta residents are opposed to it on principle.

“It's not going to happen,” she said. “The people won't let it.”


Telluride CO Daily Planet: http://www.telluridegateway.com