EMINENT DOMAIN: An Imminent Danger? Symposium

Having just returned from the First Annual Chapman Federalist Society Symposium entitled EMINENT DOMAIN: An Imminent Danger? I can report that this four and a half hour event, attended by around 60 attorney’s, students and activists, exceeded my expectations. The sponsors created three panels consisting of “ten very prominent scholars, practitioners, and politicians to discuss the controversial topic of eminent domain.” It is shameful that this basic property rights protection issue has become very controversial. The naysayers are quick to criticize but offer no alternatives. In all of their rhetoric they ignore the pain and suffering of eminent domain victims.

The first panel covered the “history, principles and pragmatism behind eminent domain.” Panelists included Tim Sandefur of Pacific Legal Foundation, Chapman University School of Law Professor Lawrence Rosenthal, Paul Weiland, and Rick Rayl, the last two representing Nossaman Guther Knox and Elliott NSK&E.

Tim lead off and was very bold in his presentation. He said “we live in an anti property rights culture.” Tim illustrated an imaginary landowner being told he “can’t cut down trees on your property because you will allow light into the river onto the speckled trout.”

Professor Rosenthal said “we all like to cherry pick our history and talk about it.” He tried to spin the wording in the Fifth Amendment by stating what is doesn’t say. He claims that it was written by our founding fathers to permit forfeitures and fines. Lawrence spent most of his allotted time defining and trying to justify a public use. He did say that “it is better to have democratically accountable government rather than leaving it up to the courts.” Based on our losing efforts to get protective legislation passed in the CA legislature I must question if he puts too much cream in his coffee.

Paul Weiland is a former trial attorney for the US Department of Justice. His focus was on environmental issues. He raised possible conflicts with existing water and air quality laws and the Conservation Planning Act.

Rick Rayl, NSK&E, the last speaker in this first panel represents both sides in eminent domain cases. He reported two polls on Prop 90. The most recent, the Datamar poll, showing 56 percent in support of Prop 90 and the July Field poll where 46 percent supported Prop 90 with 31 percent opposed and the balance undecided. Rick said that although decisions must be published on “any” order we do not have a mechanism in CA now to handle it. He covered the financial impact of “downzoning” and property owners ability to request jury trials with passage of Prop 90.

During the Q & A between the panelists they engaged in a debate of the “due process” clause and tried to interpret Alexander Hamilton’s position. Sadly, Alexander Hamilton was not present to explain his understanding and we were left to figure out which panelist to believe.

The second panel consisted of Chapman University School of Law Professor John Eastman and John Murphy of NGK&E.

Professor Eastman told us he “thinks Kelo will be reversed” citing comments of “Justice Stephens who questioned his own opinion two months later” at an event.
He than went into detail of his success story representing the Long Beach Filipino church that was scheduled to be bulldozed to make room for some new condominiums. He shared how the parishioners organized and eventually overturned that pending “taking.” These are former gang members and inner city minority groups who worked side by side to protect their house of worship.

John Murphy, another attorney from NGK&E shared two cases where he defended churches whose properties were taken by Caltrans. Anaheim’s Foursquare Gospel church and Calvary Deaf church in Riverside. John pointed out that “every case is about David v. Goliath.” He cited a “lack of sensitivity by government and bureaucratic sloppiness.”
The final panel was a debate between two supporters and two opponents of Prop 90. Assemblyman Ray Haynes led off by simply saying “I’m going to tell you what Prop 90 really says.” Without going into detail let me share some of Ray’s remarks. “Prop 90 is a direct intrusion on government power” that’s why it is being opposed. “What developer do you know who will ever criticize a member of a city council.” “Defend property rights first and the rest will take care of itself.”
Gary Patton, PCL Foundation, disappointed me. He read a who’s who list of opponents instead of making a case to oppose the Initiative. Gary said “he is not sure if Prop 90 is intentionally poorly written.”
Gary was followed by Professor Gideon Kanner, Professor of Law Emeritus at the Loyola School of Law, who, along with Ray Haynes, represented the YES on 90 side of the debate. He compared government with it’s superior resources versus Joe Six-pack who is struggling to survive. He discussed attorney compensation that is based on a contingency and inverse condemnation. “Everyone wants a healthy wholesome environment but no one wants to pick up the cost.”

Our last panelist on the NO side was Ken Mac Vey representing Best, Best & Krieger. Ken said the initiative is “filled with terms we don’t understand.” It “redefines regulatory takings.” He argued that “substantial” economic loss is not defined.In their response to other panelist questions Ray said that Oregon Measure 37 was retroactive. He later said the “one problem with Prop 90 is that it’s not retroactive.”Sorry but it is a challenge to listen, take notes and question the panelists simultaneously.

At the reception which followed one attendee told me that she was pleased to see us applaud for each speaker even if we did not agree with their position as compared to what recently occurred at Columbia University.

Larry Gilbert