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.

The philosophy behind "quick take" condemnations, a particularly pernicious type of taking discussed in my last post, is well summarized in this classic dialogue from Buffy the Vampire Slayer. Faith, an unscrupulous fellow slayer, tries to persuade Buffy to adopt her amoral philosophy of life:

BUFFY: Okay, we got ten, maybe twelve bad guys and one big demon in desperate need of a Stairmaster.

FAITH: I say we take 'em all, hard and fast and now.

BUFFY: We need a little more firepower than none. Maybe we should go back to the library [where the slayers' weapons are stored].

FAITH: ....(looks around) I just... wish we had . . .(sees Meyer's Sport and Tackle shop) Ah. That is too good.

They break in. Faith finds the Archery counter.

FAITH: Ah. Score.

BUFFY: Think they're insured?

FAITH: Strangely, not my priority. When are ya gonna get this, B? Life for a Slayer is very simple: want... take... have.

BUFFY: Want... take... have. I'm gettin' it.

Because of a seemingly pressing immediate need, Buffy and Faith take the property of others without going through the usual procedures and without getting the consent of the owner. The rationale for "quick take" condemnations is exactly the same. Yes, unlike Buffy and Faith, governments that use quick take pay compensation; but that compensation is generally well below the true value of the property to the owner, and the latter still ends up losing his land, and often loses the structures built on the land even if it turns out that the condemnation was illegal.

The two slayers eventually learned the error of their ways. Not so with most of the state and local governments that use quick take.

UPDATE: Later on in the same episode, Faith argues that vampire slayers have the right to take things they need without paying for them because of all the benefits they provide to society by protecting the world from vampires and demons. This argument is very similar to Justice Brandeis' dissenting opinion in the famous takings case of Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922), where he claimed that the government had the constitutional right to engage in uncompensated regulatory takings in part because it provides property owners with "the advantage of living and doing business in a civilized society."

Perhaps we Property professors should teach takings law by having the class watch BTVS episodes:)!

UPDATE #2: Somewhat surprisingly, several commenters have argued that Buffy and Faith wre actually justified in trying to steal the weapons. Maybe they would have been in if they were in imminent danger of being attacked by the vampires. In fact, however, it was the slayers who were planning to attack the vampires (who didn't know that B and F were there), not vice versa. Private citizens - and even police - have no legal or moral right to steal weapons in order to catch criminals unless they really are in immediate danger from them. A bounty hunter or private detective can't steal your gun and then claim that he was justified because it helped him track down and neutralize a fugitive criminal. Even if there were an immediate danger, the "necessity" defense would only allow the slayers to use the weapons to defend themselves in that particular encounter, not keep them permanently.

Finally, I think it's pretty clear that Faith's "Want, Take, Have" philosophy is not limited to the facts of this particular case. It applies to any situation where the slayers need something quickly - or even just think they do. It was that general principle - which is remarkably reminiscent of the way quick take condemnations are used in Baltimore and elsewhere - that I meant to criticize.

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.