A False Sense of Security: The Potential for Eminent Domain Abuse in Washington
William R. Maurer, Washington Policy Center Adjunct Scholar, and Executive Director of the Institute for Justice Washington Chapter, December, 2006
Private property is the foundation of a free society. Property rights give citizens the means to defend all their other rights from the encroachments of government or the incursions of others.
Property gives people the means to pursue their dreams and live their lives the way they choose. Private property also provides people with the ability to help others, through their time and voluntary giving. When government takes property through the abuse of its eminent domain power, it makes it harder for citizens to defend their rights, pursue their dreams or help others.
Governments may constitutionally acquire property to serve an essential public use, but officials should limit such seizures to an absolute minimum. Most people gain their property through hard work, long hours, patience, careful planning and voluntary negotiation rather than force. When government officials respect property, they respect the people who earned or created it.
On June 23, 2005, the U.S. Supreme Court issued its notorious decision in Kelo v. City of New London, Connecticut. This decision held that the City of New London could condemn private property and transfer that property to other private entities in order to promote “economic development,” increase the city’s tax base, and meet the “diverse and always evolving needs of society.” The decision effectively removed any federal impediment to eminent domain abuse. The public’s response to that decision was immediate, strong, and almost uniformly negative.
Under both the U.S. and Washington constitutions, the government may only condemn property for a “public use.” Historically, public use meant things actually owned and used by the public – roads, courthouses, post offices, etc. Increasingly, particularly over the past 50 years, the definition of public use has been blurred by the courts to the point that the public use restriction has become no restriction at all.
Property is routinely transferred by force from one private person to another in order to build luxury condominiums and big-box stores. Between 1998 and 2002, the Institute for Justice found that there were more than 10,000 actual or threatened condemnations for private development across the country. After Kelo was decided, local governments across the United States went on an eminent domain abuse spree, even as much of the country reacted with revulsion to the Supreme Court’s decision.
Many people in Washington wondered what impact the Kelo decision could have here in Washington State. Some commentators argued that this decision was essentially meaningless in Washington, that we were not a Kelo state, and that our state constitution’s protections adequately protect Washingtonians from the kind of abuse we saw in New London. These commentators are wrong.
While the Washington Constitution does contain clear and unambiguous protections for private property, these protections have been gutted by our state’s judges. Many state laws provide the government with procedural cover with which to carry out eminent domain abuse. Although eminent domain abuse in this state has neither been as egregious or commonplace as it has in some other states, it has still occurred and it has done so under the very constitution and state laws municipalities, developers and their lobbyists and attorneys assure us prevent this type of abuse.
What Washington citizens have now is a false sense of security, not real protections from losing their property through eminent domain abuse. The Washington Supreme Court has demonstrated that it is not interested in enforcing the Constitution as it is written. Local governments realize that our courts have no stomach for keeping them within constitutional limits, so they continue to erode our right to be secure in our homes and businesses. It is clear that to protect homes and small businesses in Washington, solutions must come from either the Legislature or the people themselves.