[Capr-announce] Eminent Domain Abuse

[Rodney McFarland]

February 16, 2006

PRESS RELEASE

Contact:  Charlie A. Klinge or Diana Kirchheim, Groen Stephens & Klinge
LLP,
Bellevue, WA  (425) 453-6206

WASHINGTON STATE SUPREME COURT ALLOWS SOUND TRANSIT TO ARBITRARILY TAKE
PRIVATE PROPERTY FOR THE SOUTH TACOMA SOUNDER RAIL STATION

The Washington Supreme Court today upheld Sound Transit's arbitrary
condemnation of private property for the South Tacoma Sounder Rail
Station
in Central Puget Sound Transit Authority v. Kenneth R. Miller.  A bare
majority of the Court eviscerated constitutionally protected property
rights
in a different, but equally devastating manner as the United States
Supreme
Court in the recent and much maligned Kelo case.  The dissent thought
otherwise (Chief Justice Alexander and Justices James Johnson, Sanders,
and
Chambers).

This case challenges Sound Transit's, and every other government
agencies',
power to ignore the facts, ignore public input, and take property based
on
nonsensical reasons.  Prior to this case, citizens could look to the
Courts
to fairly review an agency determination of condemnation, and require a
showing of public use and necessity, but no longer.  The State
Constitution
specifically promises that the issue of public use and necessity in a
condemnation case "shall be a judicial question" "without regard to any
legislative assertion"  in Article I, Section 16.

The key point is that by making it a "judicial question," the State
Constitution ensures judicial review to prevent arbitrary and capricious
agency condemnation decisions.  Yet, the majority opinion by Justice
Fairhurst never even recognizes that this Constitutional language exists
and
instead rules that the courts are bound by, "the high level of deference
we
accord legislative bodies in making necessity determinations."  The
majority
by only five of the nine justices refuses to follow the State
Constitution
and in doing so completely eliminates decades of judicial precedent
requiring the courts to ensure that the taking of people's property is
necessary for the constitutionally required public use.  The Supreme
Court
majority abdicates the constitutionally required responsibility of the
courts in favor of a "high level of deference" to government agencies.
As
concisely put by Justice James Johnson in dissent:

Only by adopting a rubber-stamp standard of review at odds with article
I,
section 16 and relevant case law can the majority look the other way.
To
rely upon clearly erroneous factual information of such magnitude
amounts to
arbitrary or capricious conduct.

Justice James Johnson also quoted an earlier case in pointing out that
without proper judicial review and adequate agency evidence, the
condemnation decision, "would amount to oppression and abuse of the
power."

The unrebutted evidence in this case was so overwhelming that it is
clear no
property owner can expect the courts to stop any condemnation decision
in
the future.  The facts at trial were unrebutted by Sound Transit and
largely
accepted by the trial court.  As a result, the trial court ruled that
Sound
Transit, "negligently omitted and missed some facts and evidence which
ideally should have been considered, and if considered could have
reasonably
led to a different result."  Yet, the trial court in following complete
deference to Sound Transit refused to throw out the condemnation
decision,
and the majority of the Supreme Court agreed.

Yet, Sound Transit's process was so full of erroneous facts and
improprieties that the decision would have been thrown out under prior
case
law:  (1) Sound Transit made false statements to the public that other
alternative sites had prohibitive contamination problems; (2) Sound
Transit
did not even know that a change in the project would require the
demolition
of a historic house on the Miller property listed by the City of Tacoma
as a
historic structure; (3) Sound Transit threatened a community activist
into
ending complaints about the process and the failure of Sound Transit to
choose a better alternative, and this threat came directly from the
Chair of
the Sound Transit Board and Pierce County Executive John Ladenburg and
Sound
Transit Board Member and Tacoma City Council Member Kevin Phelps; and,
(4)
Sound Transit never even considered a better site immediately adjacent
to
the proposed station that would not require dangerous pedestrian
crossings
over the tracks.  The majority ignores the facts, or worse misstates the
facts, and otherwise brushes the facts off as no big deal.  As a result,
the
constitutionally protected right of citizens to stop massive government
power grabbers like Sound Transit or any government agency is destroyed.

The first issue in the case is also resolved by the majority in a manner
destroying previously held rights.  Sound Transit was required to give
public notice before making the condemnation decision and the majority
rules
that merely placing a meeting agenda on its website is the same as
furnishing notice to newspapers as required by its own rules, and is
otherwise the same as publishing notice in newspapers, posting notice on
the
property and in public places.  The decision is the first in the United
States to say that Internet notice is sufficient alone without requiring
any
of the traditional forms of notice practiced for decades.  The majority
said
that Internet notice is the same as publication in the newspapers even
though newspapers reach hundreds of thousands of people every day, while
there was no showing of any traffic to the exact page on the Sound
Transit
website.  The majority also said the notice was sufficient to apprise
the
property owners and interested persons even though the notice only
mentioned
a condemnation in the South Tacoma area generally.

Charlie Klinge, attorney for Ken and Barbara Miller, said: "Today, the
State
Supreme Court majority destroyed a previously held Constitutional right.
Government can take your private property even when the condemnation
process
is corrupted by falsehoods, threats to community leaders, and other
arbitrary and capricious actions.  For over a century, the Washington
courts
protected the citizens from arbitrary government condemnation actions,
but
no more."