Sunday, February 04, 2007

Whose Side Is Our Supreme Court On, Anyway?

This week's decision by the Washington Supreme Court allowing local governments to take private property with little or no notice to a property owner is yet another example of why we needed a change on the court. Justice Susan Owens, who defeated property rights attorney John Grohn this past November voted with the majority, saying that in essence, the government doesn’t have to officially notify you it wants your property. The ruling says all that’s required is that the government post it on a Web site — no matter how obscure — to constitute “Official Notice.”

This is the third major decision by the court in recent years that erodes private property rights and expands the government’s power to basically steal your property. If there was ever an illustration of why Owens should have been given the boot this past November, this is it.

The Supreme Court’s decision comes as even both Queen Christine and our decidedly ultra-liberal Legislature have come to grips with the fact that eminent domain has taken on a life of its own ever since the Kelo vs. New London decision. For once, Legislators from both sides of the aisle are supporting a bill requiring government to notify property owners of a proposed taking via certified letter.

In a press release that finds the generally conservative Building Industry Association of Washington (BIAW) in the unusual position of being on the same side of an issue as the Governor and Legislature, BIAW Executive Vice President Tom McCabe hit the nail squarely on the head when he said, “Apparently the Justices who voted in the majority in this case are the only ones who think government should have to do less, not more, to inform property owners that their land might be seized by government. Property owners have no recourse but to check government agency websites and meeting agendas on a daily basis to see if government is thinking about taking their land.”

He added, “There is no question that we now live in a state governed by the Kelo decision. Our state constitution ostensibly provides greater property rights protection than the federal constitution, but our Supreme Court has turned its back on those protections.”

We couldn’t agree more.

1 comment:

  1. It looks as though the majority of the state supreme court was correct this time. (This isn't the sneaky publication of notice on a web site case.)

    The problem lies in the statutory provisions which don't seem to require the kind of notice to interested parties that reasonable people would expect. The entities authorized to exercise the power of eminent domain are essentially left to decide for themselves how to provide public notice.

    In this case, the typical kinds of notice were provided (local news outlet, posting the agenda, etc.) as they would have been for any regular meeting.

    And, as one of the dissenters noted, the typically uninformative language of the agenda wouldn't have tipped anyone off to the land involved -- just as so many other gov't entities hide their intent behind vague language in the published agenda.

    In this particular case, the land owner had been in negotiations with the district about selling the land to the district. The district decided to go with a condemnation proceeding without bothering to pick up the phone or send a fax or letter.

    The land owner didn't lose the right to contest the propriety of the use of eminent domain in court. The owner lost only the chance to go to the regular district meeting and make a public comment about the district's agenda item -- that is, to try to persuade the commissioners not to authorize the beginning of a condemnation proceeding. You don't have to be a total cynic to realize that the land owner lost nothing meaningful by not knowing the vague agenda item referred to the land the district had been trying to buy.

    Most of us would expect better from our government. But, people can be cunning, so the statutes must contain the required procedure that we would all expect to see -- that is, tell the affected land owner and neighbors what is on the agenda. It just ain't hard to do. (Compare what is required when a private individual wants a re-zone or other land-use action. I think private individuals are required to do more in the way of notification than the government. If anyone knows differently, please save me the research time and speak up.)

    The problem isn't confined to eminent domain. For example, I didn't know until looking through the Kitsap County Assessor's tax assessment book for this year that the Port of Bremerton imposed a 45 cents per $1000 levy by resolution at its November 2006 meeting for "industrial development district" purposes. Their agenda simply indicated that the resolution would authorize "all allowable levies." Well, that new "IDD" levy of 45 cents is "allowable," so there it is. Would you have thought the Port would have let the public know the commissioners were considering such a substantial property tax increase?

    The legislature needs to require more specific notice by government entities to the public in all situations, not just eminent domain.