Nevada range land or Washington property owners – the power of eminent domain threatens us all

Appeals Court judge claims he lacks the authority to second-guess government

re-posted by permission from the author

Washington State’s Division 1 Court of Appeals issued a procedural ruling on Monday that probably won’t warrant much attention even in Bellevue, but it goes a long way towards explaining why ordinary folks and private-sector businesses too often feel powerless in taking on the faceless government when property rights are at stake.

The case in question involved the city of Bellevue’s desire to extend NE 4th Street by an additional four blocks from 116th Avenue NE to 120th. Unfortunately, that section of road is adjacent to an existing Best Buy store, whose owners were less than overjoyed by the prospect of demolishing a portion of their building to accommodate the new road.

No matter. What the government can’t buy, it confiscates by eminent domain. And in this case, the city announced plans for a five-lane road project and used its authority to condemn two needed parcels on the Best Buy property.

The Virginia-based retailer responded by filing a lawsuit, arguing that a four-lane road – which wouldn’t require any of its building to be demolished – would serve the city’s current needs perfectly well. But adding a fifth lane, Best Buy argued, had nothing to do with existing traffic conditions and everything to do with future economic development.

And that’s a sensitive argument in light of the 2005 U.S. Supreme Court ruling in Kelo v. New London (Conn.). In that case, the justices set off a firestorm by declaring that governments are permitted to use the power of eminent domain in the pursuit of some vaguely defined “public interest.”

Up to that point, it had been understood that governments could only condemn property to build a “public works project,” like a road or a bridge. But under Kelo, governments are now free to seize property from one private owner and sell it to another they believe will put it to a use that better serves the “public interest” – for example, a commercial project that generates more property and sales taxes than the former owner.

Best Buy’s attorneys argued that a four-lane road constituted a standard eminent domain transaction, but adding a fifth lane was an “arbitrary and capricious” decision by the city. Judging by the arguments made in the court action, they seemed poised to mount a challenge to Kelo, which would have been a fascinating – and potentially precedent-setting – buy

But the Appeals Court sidestepped that possibility by refusing to even consider the merits of the case – as the judge in the lower court originally had. Instead, Judge Stephen Dwyer essentially ruled that whatever the government wants is, by definition, good enough for him.

“Because it is not our role to second-guess Bellevue’s choice of road design, we affirm,” he wrote.

Come again? Since when is it not the role of the court to second-guess government? Judges second-guess individuals every day of the week. Aren’t governments made up of equally flawed human beings? Shouldn’t the government’s actions be subject to the same level of scrutiny?

In making his ruling, Dwyer cited the 1965 Washington State case of Deaconess Hospital v. Washington State Highway Commission, which found that:

“Although the courts may well determine from the evidence whether a project is for the public benefit, convenience or necessity, they are not trained or equipped to pick the better route, much less design and engineer the project. Thus, the rule that leaves these decisions to the administrative agencies is a sensible one consistent with the idea that the public’s business be carried out with reasonable efficiency and dispatch by those possessing the superior talents to accomplish the public purposes.”

So again, we’re relying on the “superior talents” of the government’s engineers to carry out a project with “reasonable efficiency and dispatch.” Just out of curiosity, has that been your experience with the state’s Department of Transportation, to cite just one example?

The plaintiff – in this case Best Buy – could and did present testimony from its own experts showing why four lanes were appropriate but five amounted to government overreach. And the judge is certainly free to disbelieve their conclusions. But it’s something else entirely to reject out of hand any version that contradicts the omniscience of the city government.

To state the obvious, judges are asked to rule on a vast universe of specialized topics, from real estate law to biological science and climate change, accounting procedures and forensic investigations. No one ever said it’s supposed to be easy; that’s why expert witnesses were invented – to explain complicated material so even a judge can understand it.

But if the standard is that judges can only consider subjects on which they are experts already, apparently only a very narrow range of litigants can expect justice.

Again, whether the city was right or wrong to insist on five lanes rather than four isn’t really the point here. What’s vastly more important – and appalling – is the specter of an Appeals Court judge punting his responsibility to actually weigh the facts just so he can rubber stamp the foregone conclusions of another branch of government.


Jeff Rhodes
Electronic News Editor

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