Washblog

BIAW relies on two court cases to sell its eminent domain story to the anti-government and property rebellion voters: HTK Management v Seattle Monorail  and Central Puget Sound Transit v Kenneth Miller, as below.

 

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Seattle Monorail Case
No. 76462-0

HTK MANAGEMENT v SEATTLE MONORAIL PROJECT, 2005

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BIAW SAYS: The monorail station would have used only a third of a private property purchased under eminent domain. The court okayed the sale of the remaining property, putting Washington state in the land speculation business at the expense of private property owners. The first step in turning Washington into a Kelo state came in the Seattle Monrail decision on October 20, 2005.  That case involved the Monorail Authority's use of eminent domain to take more property than was necessary for a new substation -- the station would have only taken up (sic) a third of the condemned land.  The monorail authority intended to use that additional area initially as a staging area then to sell to a private developer.  The Washington Supreme Court allowed the Monorail to take more property than was needed -- esentially permitting a public agency to become land speculators at expense of property owners who do not wish to sell.  Under the takings powers, property owners are powerless to stop this government abuse. From: Legal Report: State Supreme Court Headed in the Wrong Direction. BIAW ECHO CHAMBER SAYS: Gutted protections against eminent domain abuse. Ruled that agency can take private property even if it intends to sell it to private developer at a later time. From: The tragedy of the Alexander Court: A dozen years of appalling, liberty-destroying rulings".		THE PUBLIC RECORD SHOWS: The station may have used all or most of the property.  The remainder would have been needed for public use for at least five years and perhaps permanently. SMP has not yet approved a final design for the Second and Yesler station.  Some preliminary designs show the station footprint covering the entire property, other more recent designs show a smaller footprint. ... After construction of the station, SMP currently has no planned use for any portion of the property that may remain uncovered by the final station design.  SMP states that it would be premature to make definitive plans for the property that may possibly fall outside of the footprint.  For example, a portion of the property may be used for loading and unloading passengers from para-transit vehicles, taxis, and tour buses. After the monorail is completed, SMP may lease or sell the unused portions of the property, if any... the record indicates that the remaining portion of the property could be used for at least 10 years for construction and remediation of property in downtown Seattle...  In this case, for the first 5-10 years, a substantial portion of the property will be put to public use and only after that time is there a possibility that the property may be sold....HTK points to no authority that requires a condemning authority to have a public use planned for property forever.  Indeed, long standing Washington law is to the contrary. From the majority Supreme Court opinion available at: The Municipal Research and Services Center.
BIAW SAYS: This case takes us the first step toward making Washington a "Kelo" state. From: Legal Report: State Supreme Court Headed in the Wrong Direction.		THE PUBLIC RECORD SHOWS: The court found that the legal issues in this case bear no resemblance to those in Kelo. Unlike in Kelo v. City of New London, in this case it is undisputed that the use to which the property is to be put - public transportation -- is a clear public use. Indeed, public transportation has been determined to be public use for nearly 100 years in Washington. From the majority Supreme Court opinion available at: The Municipal Research and Services Center. Contrary to the dissent's view, the facts and legal issues in this case bear no resemblance to the recent decision in the United States Supreme Court in Kelo v. City of New London. In Kelo, the City of New London condemned property in order to develop a certain area of the city, which included the condemnation of property in order to build a private hotel and new private residences to be owned by new home owners.  In contrast, in this case, the property is being condemned to build a public monorail, an undisputed, historic public use. From the concurring Supreme Court opinion available at: The Municipal Research and Services Center.

 

 

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Puget Sound Regional Transit case
No. 76284-8
CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY VS KENNETH R MILLER, 2006.

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BIAW SAYS: The only notice given to property owners on an eminent domain hearing was a vague announcement on a government web site: "This month, the Sound Transit v. Miller case went even beyond the Seattle Monorail case in extending a strained reading to perfectly clear Constitutional language.  Miller involved condemnation of parcel where the property owners were only notified by a website that their land was the subject of an eminent domain hearing  -- a web posting that did not even specify the precise parcels of property that were the subject of the hearing." From: Legal Report: State Supreme Court Headed in the Wrong Direction. BIAW ECHO CHAMBER SAYS: Court ruled that an agency can take private property without directly informing the owner, and abdicated its constitutional responsibility to review taking decisions. From: The tragedy of the Alexander Court: A dozen years of appalling, liberty-destroying rulings".		THE PUBLIC RECORD SHOWS: The property owners knew for years that their parcel was under eminent domain consideration and had even participated in the proceedings. Vague notice was given for a public hearing. However, for both court proceedings, the owners received formal written notice. The court decision on this notice, however controversial, was based on legal precedent and an analysis of basic fairness. In the first three years of the site investigation, Miller cooperated with Sound Transit in the possible condemnation action.  In 2001, Miller executed a release that allowed Sound Transit to enter the property to survey and take soil samples.  Meanwhile, in June 2003, Sound Transit scheduled a public Board of Directors meeting to discuss which of three sites in the area was best suited for the transit center.  Notice of this meeting and its agenda were published on the Sound Transit web site but it appears that no other steps were taken to inform the community of the upcoming meeting...  Sound Transit then instituted condemnation proceedings against all of the selected properties.  On July 10, 2003, Miller was served with a formal notice of intent to acquire property. In August 2004, Miller was served with the petition in eminent domain.  The public use and necessity hearing was held on October 25 and November 1, 2005, in Pierce County Superior Court. From the majority Supreme Court opinion available at: The Municipal Research and Services Center.
BIAW SAYS: Washington's Constitution strictly requires that determinations of whether a proposed use is public must be reached by the courts, not the legislature.  The Supreme Court ignored this constitutional requirement and deferred to the legislature. According to the State Constitution, the determination whether a taking is necessary for a public use is a legislative assertion."   The Washington Supreme Court majority inexplicably chose to ignore this express constitutional mandate, stating that they were bound to the legislative determination. From: Legal Report: State Supreme Court Headed in the Wrong Direction.		THE PUBLIC RECORD SHOWS: Washington's Constitution does indeed require judicial, not legislative, determinations of public use. (3)  This requirement was met because transportation is a judicially-determined public use in Washington.  The property owners did not dispute this. The dissent spends several pages arguing that the determination of public "use" is a judicial inquiry requiring no deference to the agency seeking condemnation.... (W)e note that it is not at issue here... (T)he condemnation of private property for public transportation is within the state's eminent domain power and almost categorically a public use....  We also note that the dissent continues to conflate the terms "use" and "necessity" as it did in In re Petition of Seattle Popular Monorail Authority.  In the section entitled 'Unsubstantiated Public Use Determination,' the dissent uses the terms 'use' and 'necessity' interchangeably throughout the section, claiming that both are judicial determinations.  Second, although Miller originally challenged whether the project was for a public use, the trial court made a specific finding that Miller did not contest the determination of public use at trial and Miller did not assign error to the court's finding on appeal... From the majority and concurring Supreme Court opinions available at: The Municipal Research and Services Center.
BIAW SAYS: The Supreme Court has created new law allowing government to take private property without showing there is a public need. This clinches it -- we're a "Kelo" state. The majority of the Supreme Court, in an opinion authored by Justice Mary Fairhurst, lets Sound Transit, or any other government authority, take property without showing there is a public need.  That constitutionally-defying level of deference brings us to Kelo.  Jurisdictions may simply deem any taking a public use -- whether for land speculation or not--and (absent fraud) the courts will defer to that decision.  This robs property owners of their right to a day in court to determine whether a taking is necessary for public use. In fact, Sound Transit never showed that condemning the Miller's property was a "public necessity" -- instead, they simply asserted that their determination was conclusive -- without analysis.... From: Legal Report: State Supreme Court Headed in the Wrong Direction.		THE PUBLIC RECORD SHOWS: Sound Transit provided extensive evidence of the reasons for its determination of necessity.  Both the trial court and the Supreme Court reviewed this determination. (S)ince the trial judge has already weighed the evidence supporting public necessity, this court will review the record to determine only whether the factual findings are supported by substantial evidence...     We turn now to the specific challenges... We find each of Miller's specific challenges to be without merit. From the concurring opinion: Sound Transit provided extensive evidence of the reasons for its determination.  The Millers simply do not agree with those reasons. (T)he record indicates that Sound Transit presented voluminous evidence supporting its site choice... From the majority Supreme Court opinion available at: The Municipal Research and Services Center.

 

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Summing up: Whatta scam

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The BIAW is paying big money to sell us misinformation because we're more likely to vote for its candidates and causes if we believe that Washington State is out to steal people's land.

Stephen Johnson has the education and training to know these claims are false. Instead, he uses them to advance his campaign. This indicates that he's either knowingly complicit, that he's failed to do his due diligence to read the court cases these claims are based on, or that his judgment is seriously impaired by his relationships with special interests.

In the Seattle Monorail case, the six concurring judges seriously chide the two dissenting judges, Richard Sanders and Jim Johnson for their arguments.  This is a remarkable document.  The six judges say that Johnson and Sanders, the property rights ideologues, are blurring distinctions, being artful, derogating their own claims, conflating various legal tests, failing to mention important facts, being "mistaken", making erroneous claims, misplacing their reliance on cases that have no relevance to the points they make. We don't need another judge like this. Washington State deserves better.

 

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Notes

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1. (The major source of independent expenditures ... for Stephen Johnson (or against Owens) is the Building Industry Association of Washington, an organization of builders and developers unabashedly opposed to government regulation. The BIAW and its affiliated PACs have funneled more than $900,000 into the Supreme Court races.  SPECIAL-INTEREST MONEY FUELING JUDICIAL RACES GROUPS PAY TO PUSH SPECIFIC IDEOLOGIES; [FINAL Edition] GREGORY ROBERTS P-I reporter. Seattle Post - Intelligencer. Seattle, Wash.: Sep 15, 2006. pg. A.1)
2.  

3. A "Frontal Assault" Call it business's revenge, or better yet, business's new political strategy ... local chambers of commerce and tort reform groups encouraged businesses to start putting some skin into local elections...  This year, that effort has given rise to a frontal assault aiming to reshape courts and law enforcement offices across the nation. Excerpt from WSJ, 6/25/06, p. A14. "Corporate America Takes on Spitzerism," which is linked to on BIAW's front page under the title: Wall Street Journal Praises BIAW's Efforts to Reform Supreme Court .

   Public Justification The Washington Supreme Court is re-writing history and eviscerating property rights.  We have an opportunity this year to change the course of our Court... The backdrop for our Supreme Court's downward spiral is the US Supreme Court's controversial decision in Kelo v. City of New London, Connecticut.  In that case, the Court allowed a city to use its eminent domain power to take private property and then sell that property to a private developer... The Kelo decision created an outcry from property rights advocates, and officials in Washington were quick to insist that a Kelo-type of situation could not happen here...  The Washington Supreme Court, in a series of strained decisions, proved them wrong... There's no question that we now live in a state governed by the Kelo decision." Excerpt from a document featured on the front page of the BIAW web site: Legal Report: State Supreme Court Headed in the Wrong Direction.

4. The question whether the contemplated use be really public  shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public.
   From Article I Section 16 of Washington State's Constitution

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