In Mayor of Baltimore v. Valsamaki an important decision issued yesterday, the Maryland Court of Appeals (that state's supreme court), ruled that cities can only condemn property through "quick take" procedures if they prove that there is an "immediate necessity" for doing so.
As Tim Sandefur of the Pacific Legal Foundation explains in his post on the case, "quick take" procedures essentially enable the government to take your property first and ask questions later:
"Quick take" is a procedure that allows government to take immediate possession of property without going through the usual procedure in an eminent domain case. They take your property and then later deal with whether they had the right to do so. As PLF argued [in an amicus brief]—and the court agreed—this unfairly means that a property owner could very well win his case only to find that his property has been destroyed in the meantime! This, the court recognized, is terribly unfair."
The decision is important because "quick take" condemnations often enable government to get away with legally dubious condemnations. Once whatever buildings originally existed on the property are destroyed, the owner has little incentive to continue to pay the costs of litigating the case instead of settling for the "fair market value" compensation provided by the government.
Valsamaki is based on state statutory law rather than the Maryland state Constitution, so it can potentially be reversed by the state legislature. The relevant law (as quoted in the decision) permits quick take condemnations only if the government has filed "a Petition under oath stating that it is necessary for the City to have immediate possession of, or immediate title to and possession of, said property, andthe reasons therefore," and "[i]f it appears from a Petition for Immediate Possession, with or without supporting affidavits or sworn testimony, that the public interest requires the City to have immediate possession of said property." Md. Code Public Local Laws of Baltimore City, Section 21-16. As the Court's opinion shows this language, combined with standard canons of interpretation provides strong justification for placing the burden of proof on the government rather than the property owner.
This is a strictly limited ruling. In addition to being based on statutory rather than constitutional law, it does not constrain the purposes for which government can condemn property, but merely requires it to prove that there is an "immediate necessity" for circumventing the usual procedural rules for takings (which include allowing the owner to challenge in court the government's claim that the taking is for a legitimate "public purpose" as required by the state constitution).
Maryland courts define "public purpose" extremely broadly, having upheld the condemnation of property for "economic development" purposes in a 1975 decision, Prince George’s County v. Collington Crossroads, 339 A.2d 278, 287 (Md. 1975). This case is, of course, Maryland's state constitutional equivalent of Kelo v. City of New London, which held that takings for economic development are permissible under the federal Constitution. As I have explained in numerous articles (e.g. - here), such condemnations provide tremendous scope for abuse, and rarely if ever succeed in fostering additional development that is worth its costs and is greater than what would have occurred through ordinary market transactions. Since Kelo, Maryland is one of fourteen states that have failed to enact any reform legislation at all, despite (or perhaps because of) the fact that the state is notorious for its dubious condemnations. In a forthcoming paper that I hope to post soon on SSRN, I include tentative data suggesting that Maryland makes greater use of condemnations that transfer property from one private owner to another then all but three or four other states. There is, therefore, still much work to be done to protect property rights in Maryland. But Valsamaki is a step in the right direction, though it remains to be seen whether the Maryland legislature will allow the decision to stand.
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:
True, but the Illinois statute (relevant text here) also allows the government to take possession and "use" the property BEFORE title vests. Therefore, they can destroy or modify any existing structures on that property. By the time the owner wins his appeal, there may be nothing left for him to take back other than an empty lot.
"[S]uch condemnations provide tremendous scope for abuse, and rarely if ever succeed in fostering additional development that is worth its costs and is greater than what would have occurred through ordinary market transactions."
(1) Cost/benefit analysis isn't written into the Constitution. Further, even if it was, one can rationally disagree with your assessment about costs/benefits. Hold out problems are real, where the "hold-out value" of the property to the holder is determined by an ability to "extort" a price higher than fair market value and subjective individual value from someone who wants to put the property to more productive use. I think if you were to read cost/benefit analysis into the Constitution, you would lose.
(2) Just about any government power whatsoever can be abused. Private economic power also can be abused. Your neighbor can hurl verbal abuse at you. Police can benefit from illegal searches when they use the evidence seized against those without standing. Abuse and the potential for abuse is everywhere. I just don't find the "potential for abuse" (or in your words, "scope for abuse") argument adequate or persuasive to support a generalized rule against economic takings. What I would find persuasive are specific instances where abuse is not merely potential but actual and definite. Even then, I am not sure that the remedy is constitutional law as opposed to the political process. Is there something special about economic takings that you think the political process can't handle? Shouldn't successful referendums and initiatives and legislation against economic takings suggest that the political process can, and in fact does, check (if not eliminate) any abuses?
(3) Isn't it interesting how conservatives turn their backs on federalism when it involves an issue near and dear to their heart? All of the sudden, the federal government has the answers. We must stop states from acting with discretion in this area. I think there is some amount of hypocrisy here, with this sudden interest and advocacy of federal judicial activism. Not that I think federalism is an all or nothing proposition. However, I am suspicious when individuals suddenly want federal control when it is an issue they care about.
Sorry, I don't see anything in the post about federal control, just concern about property rights in Maryland.
2) Nothing in Ilya's post has a damn thng to do with the federal government, federal judges, or federal control.
Sure. Merely applying the Bill of Rights is not necessarily turning your back on federalism (though some federalism advocates would disagree). But interpreting the Bill of Rights in a way that reduces the power of the states and aggrandizes the power of the Supreme Court is a common criticism among those who accept incorporation, but nonetheless claim to be advocates of federalism.
David Nieporent writes:
Read the post again. The part I was quoting was discussing Kelo. Somin disagrees with the result in Kelo as is made clear by the criticisms he made of it in this very post, which I quoted and was addressing.
Now, correct me if I am wrong, but wasn't Kelo a Supreme Court case, thus involving Federal judges? And don't most criticism's of Kelo go to the idea that the Federal judiciary should interpret the Fifth Amendment in a way that limits the power of the states, specifically, with respect to economic takings?
Contrary to you and Harvey Mosley I am pretty sure that Somin did bring up Kelo, a Federal case which Somin would like the federal judiciary to come in and counter "abuse" by the states.
"States win any dispute between the states and the federal government" isn't federalism; it's a dissolution of the country, devolving it to a mere treaty relationship. That might be some sort of "state's rights" argument, but it isn't federalism.
You read the post again. Of course I.S. disagrees with Kelo. But this post was not "discussing" Kelo. It had nothing to do with Kelo. Kelo was just mentioned as a point of comparison for Maryland law. He was discussing a Maryland state court ruling on Maryland state law.
Just because applying the Bill of Rights involves some reduction of state power, doesn't mean that the degree of reduction is not important to federalism advocates who accept incorporation. That is not a hard distinction to understand.
The post was not primarily about Kelo, but Somin did in fact apply a criticism to both the Maryland state decision and Kelo.
According to dictionary.com, one of the definitions of degree is:
Quibbling over whether I use the term degree or scope is entirely irrelevant to substance.
The points made previously stand. You can substitute the word scope for degree if you like.
The trial court or the appellate court is authorized to enter a stay to preserve the status quo pending the outcome of the quick take appeal, whether there is title vesting or not. Again, much ado by folks who don't know how the practice works.