Today's Baltimore Sun has a generally informative article about Mayor of Baltimore v. Valsamaki, the Maryland Court of Appeals decision limiting the power of local governments to engage in "quick take" condemnations. Unfortunately, the article also contains at least three serious errors.
Sun reporter Jill Rosen writes that Valsamaki "runs counter to the [US] Supreme Court's 2005 decision giving governments broad powers to take properties for private development." Presumably, Rosen is referring to Kelo v. City of New London. Unfortunately, her statement actually contains two separate errors.
First, Kelo only addressed the constitutionality "economic development" takings under the federal Constitution. It decided nothing about their permissibility under state constitutional or statutory law. As I explained in this post, Valsamaki was in fact decided on the basis of Maryland statutory law. Perhaps Rosen meant to say that Kelo, although not binding on state courts interpreting state law, still encourages them to interpret eminent domain power broadly. But even this conjecture is contradicted by the text of the Kelo decision. In his majority opinion for the Court, Justice John Paul Stevens wrote:
We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.
Second, even if Kelo could be interpreted as applying to state law, Valsamaki still wouldn't "run counter" to it. Kelo addressed the question of the purposes of condemnation, holding that takings for the purpose of promoting "economic development" are permissible. By contrast, Valsamaki addressed only the procedural device of "quick take" condemnations. It is perfectly consistent for the Maryland high court to hold (as indeed it has) that takings for "economic development" are permissible, but that they and other takings cannot - in most cases - be implemented through the quick take procedure. Wrong, in my view (because I disagree with the Court's 1975 decision holding that "economic development" condemnations are permissible), but not inconsistent. In addition, Valsamaki, unlike Kelo, turned on statutory issues, not constitutional ones.
Another important error in Rosen's article is her statement that the quick take procedure was "a tactic hardly tested in the legal system." In reality, numerous state and local governments have routinely used quick take condemnations for years, and courts have generally accepted the practice. As Institute for Justice attorney Dana Berliner stated in a quote elsewhere in the article, the decision will mark "a big change for a city [Baltimore] which basically has used quick take for all of its acquisitions." And Baltimore was certainly not alone.
A quick (and by no means exhaustive) Westlaw search reveals dozens of state cases addressing various aspects of "quick take" condemnations, many of them endorsing the permissibility of the procedure. For example, the Rhode Island Supreme Court upheld the constitutionality of its state's "quick take" law just last year in Rhode Island Economic Development Corp. v. Parking Company, 892 A.2d 87 (R.I. 2006)(a decision that also to some extent tightened Rhode Island's constitutional standards limiting the purposes of condemnation).
I realize that nonspecialist reporters working against short deadlines will necessarily make some mistakes. However, it seems to me that these particular errors - which might have been prevented simply by a cursory reading of Kelo and a quick Lexis-Nexis search - could have been avoided without great difficulty. If nonexpert journalists cannot be expected to do even this much, then the Post and other major papers should hire specialist reporters who focus on covering legal issues. Jan Crawford Greenburg is an excellent example of a specialist legal reporter who really knows her stuff.
NOTE: I do not mean to deny the possibility that U.S. Supreme Court decisions interpreting the federal Constitution can sometimes influence state court decisions interpreting similar provisions in state constitutions. That has certainly often happened in the past. In the case of Kelo, however, any such influence is likely to be diminished by Justice Stevens' explicit statement that Kelo's federal holding does not constrain state decisions. In any event, this possible effect of Kelo does nothing to validate Rosen's statement that Valsamaki (which did not even address a constitutional issue) "runs counter" to Kelo.
Related Posts (on one page):
- Errors in the Baltimore Sun's Coverage of the Maryland "Quick Take" Case:
- "Want, Take, Have" - Buffy the Vampire Slayer and "Quick Take" Condemnations:
- Maryland Supreme Court limits "Quick Take" Condemnations:
No matter how many times you say it, there was no clear precedent. Neither Berman nor Midkiff are nearly as broad as Kelo. It's true that both of those are far broader than I would like, but there's still a massive leap from either of those to Kelo.
Your conclusion doesn't follow, because whether it "confirmed" precedent has no bearing on whether it is "ridiculous" for there to be "fuss" about it.
Maybe. But there are in fact numerous cases from other states dealing with various aspects of "quick take." Whether those cases deal with its abuse, I think, depends on how you define "abuse." In any event, Rosen made a broad general statement saying that quick take was "hardly tested." She didn't say that it was limited to the lack of testing of abuse - by whatever definition.
The fact is that the state of the law was the same the day before Kelo as it was the day after Kelo; and even if it weren't, the decision itself wouldn't have been what "granted" the power (since the takings clause is a limiting principle on a presumed power, not a grant of power).
For what it's worth, I believe the use of eminent domain has gone way to far, and the facts of Kelo represented an unfortunate (but by no means unique) perversion of the power (but not because the entity doing the redevelopment was a private entity - as EV rightly pointed out the next day, the individuals getting upset that it was to be a private entity tend to be the very ones who believe in the privatization of government functions because they tend to be more efficient). I just don't believe it's fair to blame the court for this - the legislatures who hadn't fixed the problem previously, in the light of precedent on the takings clause, were to blame.
Finally, I didn't say there was "confirmed precedent" on this (I don't even know what that would mean), I said the court confimed they were able to constitutionally do so, and doing so was consistent with precedent (and conversely, not doing so would have been inconsistent with precedent).
Remember, no matter how many times you say that the precedent wasn't there, it doesn't make it so.
But it is fair to blame the Court for defining "for public use" as increased tax revenue.
And not doing so would not have been inconsistent with precedent.
The significance of Kelo is that it publicized just how bad eminent domain law had become. Most people wouldn't have thought such a taking was possible, until it happened to them.
In particular, the Court noted that for all that could be known from what city officials were willing to say, the City might simply be speculating on the property, using condemnation to freeze the value in a rising econonomy for resale later simply for increase in value. At minimum, the "public use" requirement means the city has to show it needs the property for something more useful, and more public, than that.
As for the "fuss" about the ruling being "ridiculous," it's one thing for the Supreme Court to allow the government to engage in constitutionally dubious conduct without interfering, but it's another thing entirely for the Court to affirmatively approve that conduct. See, e.g., Korematsu and Plessy. The idea that having a Supreme Court decision -- even one as roundly and deservedly pilloried as Kelo -- to invoke means nothing to power-abusing government officials is more than a little naive, as even a cursory post-Kelo Nexis search makes clear.