Washblog

Stephen Johnson and BIAW Team up to Reshape Washington's Supreme Court

Also see the two other stories in this series:

  1. WA Supreme Court Candidate to 5th graders: "I'd get rid of all the Democrats"
  2. Religious Right wants Stephen Johnson on WA Supreme Court

The Building Industry Association of Washington State (BIAW), a key funder for Stephen Johnson's campaign for Washington Supreme Court (1), indicates on the front page of its web site that it supports "revenge" and a "frontal assault" on Washington State's Supreme Court. (2, 3) BIAW justifies this stance by accusing several Washington Supreme Court justices of "rewriting history and eviscerating property rights."  It points to two recent Supreme Court decisions that it says have turned Washington State into a Kelo state. Kelo is the infamous US Supreme Court case that dramatically expanded the ability of government to take land through eminent domain.

This is a hard-hitting and powerful story that dovetails with the complaints of Washington's property rights movement.  BIAW says it justifies its campaign to "reshape" Washington's Supreme Court. Clearly, they also wish to further I-933.  In the past few months, the BIAW and its out-of-state pro-development cohorts have invested big money into convincing voters that this is a true story. It is demonstrably false.

BIAW has a powerful economic motive.  A combination of an I-933 victory in November and the presence of even one more development-loyal judge on the Supreme Court, has a high likelihood of granting them an almost unbelievably valuable prize: a de facto repeal of many environmental and zoning restrictions on private land in Washington. (See for example, WA Dept. of Ecology's analysis.) BIAW is looking to Stephen Johnson, who's voted their way 98% of the time over his entire career, to be their boy on the court. And Johnson's going along with the program. On the website Judicial Forum ("Setting the Standard for Attorneys and Judges According to Biblical Definitions of Law and Civil Government"), Johnson repeats BIAW inaccuracies. Johnson's campaign site states that he will enforce "Constitutional limits against illegal seizing of private property by government," joining in with BIAW's land-theft claim. In this post, I look at how the BIAW misrepresents two recent Supreme Court decisions in order to support their candidate, Stephen Johnson.

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.

 


Seattle Monorail Case
No. 76462-0

HTK MANAGEMENT v SEATTLE MONORAIL PROJECT, 2005


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.

 


 


Puget Sound Regional Transit case
No. 76284-8

CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY VS KENNETH R MILLER, 2006.

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:
So