State courts typically uphold eminent domain use

JEFFERSON CITY, Mo. -- Although the Missouri Constitution says judges shall determine when government seizure of private property is appropriate, the state Supreme Court has long held that if local officials claim the taking of land is justified, then it is.

Stanley Wallach, a St. Louis lawyer who chairs the Missouri Bar's committee on eminent domain law, said court precedent has rendered it virtually impossible for Missouri landowners to challenge eminent domain actions.

"Right now, in my opinion, there is no meaningful judicial review," Wallach said.

The most targets of eminent domain can hope, Wallach said, is to find some technical or procedural error to overturn an attempted taking. However, he said such reprieves are brief as those mistakes are quickly corrected.

Eminent domain is the government's power to take private land for public use. It traditionally has been exercised when needed to build roads or public buildings. Over the last half-century, however, courts have expanded the meaning of public use to include actions aimed at addressing social ills, such as eliminating blight.

The U.S. Supreme Court dealt property rights another blow in June when it ruled the Fifth Amendment doesn't prevent the government from taking non-blighted property from one private party and giving it to another when it believes the receiving party will use it in a manner likely to generate more tax revenue.

The decision sparked a nationwide backlash against perceived eminent domain abuse. The court left it open for individual states to restrict the scope of eminent domain if they wish.

Because Missouri courts have long deferred to local officials as to the appropriate use of eminent domain, the federal ruling merely maintained the status quo in the state. But it prompted Gov. Matt Blunt to create a special task force to study how the power is used in Missouri and recommend legislation to protect property owners from losing their land solely to make way for commercial development.

The Missouri Supreme Court's most recent and expansive statement on the issue came in the 1991 case U.S. Steel v. Koehr. In that case, a St. Louis parking lot was taken from one private owner and given to another, who was to continue using it as a for-profit parking lot.

The Missouri Court of Appeals Eastern District ruled the action violated the state constitution's prohibition against the forced taking of property for private use. The Supreme Court, however, reversed that decision and said that because the St. Louis Board of Alderman declared the taking to be for a public use, the court must defer to that determination.

That ruling was largely based on the 1954 case Dalton v. Land Clearance for Redevelopment Authority. While the state constitution says public use "shall be judicially determined without regard to any legislative declaration that the use is public," the court in Dalton nonetheless said courts will take such declarations as "conclusive evidence" of public use.

The only exceptions are when there is "clear proof" the findings of local officials are "arbitrary or induced by fraud, collusion or bad faith," the court said.

Eminent Domain Task Force member Gerard Carmody, a St. Louis lawyer, said the court's precedents turn the concept of judicial review on its head.

"In my opinion, that is exactly what courts are supposed to do -- second guess," Carmody said.