November 25, 2015 Urban Lawyer

The Way We Were: California Eminent Domain Then & Now

by Gideon Kanner

Gideon Kanner is a Professor of Law Emeritus at Loyola Law School in Los Angeles. He has been professionally active in eminent domain for some fifty years, and is a former co-editor of Nichols on Eminent Domain. This article is based on Prof. Kanner’s remarks at the ALI-CLE program on Eminent Domain and Land Valuation, San Francisco, January 2015, presented in tandem with Michael M. Berger’s similar discussion of his adventures in litigating inverse condemnation cases during the same period. See Michael M. Berger, Strong and Informed Advocacy Can Shape the Law: A Personal Journey, 4 Brigham-Kanner Prop. Rts. J. 1 (August 2015).

I have been in the eminent domain trenches as a practitioner, teacher, and commentator for some fifty years, and as I end my career it seems proper to draw on my experience and reflect on the extent of changes in the practice of eminent domain that I witnessed over the years.

I started practicing law in late 1964 in a firm of two lawyers, so that the whole firm — two lawyers, two secretaries, and the receptionist — went to Christmas lunch in one car. That is the way it was; most condemnation lawyers practiced solo or in small firms. The large downtown firms often referred their eminent domain cases to their specialized colleagues, because practicing eminent domain law was considered déclassé, and eminent domain cases often went to trial, something that was disfavored in those circles.

In California, this was the heyday of freeway construction and the beginning of major urban redevelopment, so we limited our practice to representing property owners in eminent domain cases. But, unlike most lawyers in that legal community (including my employer), I had never represented the government before going into law practice so I had much to learn, not only about the law of eminent domain, but also about its customs and practices which were different than other fields of law.1 I thought at first that in practicing eminent domain law I would be concerned with technical, if not boring, matters of valuation. Boy, was I wrong! Instead of plumbing the mysteries of the Inwood coefficient, I found myself in an atmosphere that more resembled a bare-knuckle fight than legal discourse. Many judges are former government lawyers, so unsurprisingly, courts tend to be understanding of condemnors’ positions, and tend to cut them slack, even when they misbehave. Also, as the California Supreme Court noted, there can be a close relationship between local officials and local judges.2 Working in this atmosphere, government counsel tended to develop an exaggerated idea of their own legal acumen and acted aggressively, secure in the belief that any corrective action from the bench would be either mild or nonexistent.3

My new boss put me to work as an appellate lawyer, which, in addition to writing appellate briefs and arguing in the appellate courts, required me to read a lot of trial transcripts — an activity not unlike a pathologist performing autopsies on dead bodies. This process allows you to learn what can go wrong in trial and how to properly apply all those lofty judicial phrases about fairness, justice, and indemnity.

While I was in law school (starting in the late 1950s and graduating in 1961), eminent domain was barely mentioned (if it was mentioned at all). The mass condemnations that swept the country came after the 1954 United States Supreme Court decision in Berman v. Parker,4 which approved of mass takings for urban redevelopment5 and after the enactment of the Federal Aid Highway Act of 1956,6 which led to the construction of the interstate highway network. Though I knew nothing about the nuts and bolts of eminent domain law and its practices and customs — the kind of stuff that practicing lawyers live by — in my initial reading of the law I was impressed by the many high-minded judicial expressions exhorting due process, fairness, equity, and indemnity. Since the substantive law of eminent domain is based largely on the last clause of the Fifth Amendment, I figured that the frequently uttered judicial references, to both the constitutionally-required payment of “full and perfect [monetary] equivalent” of the taken property, and to placing condemnees in the same position “pecuniarily” as if their property not been taken, had real substance. So I marched off to court full of high-minded notions that I expected to be applied to my clients’ causes. After all, hadn’t the Supreme Court stated that the law of eminent domain was an exercise in “political ethics”?7

When I pressed all that judicial “fairness and justice” rhetoric on the courts, I learned that it was not what it appeared to be and was not to be relied on in the real world. In due time, the California Supreme Court responded to my urgings by pointing out in one of its opinions that I suffered from a “fundamental misunderstanding” of eminent domain law which, in spite of much benign-sounding judicial rhetoric, did not compensate condemnees for all their demonstrable economic losses.8 In contravention of all those benign but insincere judicial platitudes about fairness and indemnity, the court dismissed them as mere “panoramic” judicial expressions of idealism that were not to be taken seriously as legal doctrine.9 Therein lay a valuable lesson: condemnees were at the time decidedly and expressly deemed personae non gratae in California courts. In short order, as I gained more knowledge of eminent domain judge-made law, I realized that three major judicial policy factors stood in the way of my clients’ success in civilizing California law of eminent domain.

First, as far as the right to take was concerned, the California Supreme Court had made it clear that a condemnor’s statutorily required findings of public necessity for a taking10 were altogether nonjusticiable, even when the resolution of public necessity had been procured through “fraud, bad faith, or abuse of discretion.”11 Other jurisdictions hold that a condemnor’s findings of necessity are not subject to judicial review unless a showing of fraud, bad faith, and abuse of discretion is made.12 But, California took the position that they were not subject to judicial review even if procured through fraud, bad faith, or abuse of discretion. And therein lay a message revealing California courts’ attitude toward condemnees’ submissions — something I would have to learn to live with.

The ostensible theory behind courts’ refusal to review public necessity findings is that, by their education and background, judges are not qualified to review — or “second guess” as they sometimes put it — the expert engineering decisions of condemning bodies.13 Being a former engineer, I first thought this sounded reasonable enough. But years later, when environmental litigation came upon the scene, I realized that in environmental review cases, judges had no trouble at all re- viewing and “second guessing” expert opinions of engineers, hydrologists, botanists, zoologists, naturalists, planners, and other experts.14 Their environmental decisions were freely examined, dissected, and, in many cases, disapproved by the same judges who professed an inability to do so in eminent domain cases. Moreover, after 1976 when the California legislature made findings of necessity justiciable and re- viewable in cases of gross abuse of discretion or bribery, California judges had no problems reviewing them.15

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