Justice fears eminent domain abuse

A Washington State Supreme Court justice is concerned about the potential for abuse of eminent domain in this state, fearing local governments will be able to condemn private property simply for its ability to generate revenue.

“Property ownership is as much a civil liberty as free speech, freedom of worship or the right to bear arms,” said Justice Richard Sanders. “But many of our civil liberties have come under pressure to yield to the ever-increasing demands of government.”

Sanders was addressing a forum in Silverdale on Wednesday sponsored by the Kitsap County Association of Realtors. The program also included his Supreme Court colleague Justice Susan Owens.

“There are many people who say that it can’t happen here because of our Constitution,” Sanders said. “But our founding fathers realized that the Constitution is nothing but ink on parchment without a court that will enforce its guarantees.”

By itself, eminent domain is an appropriate and necessary tool for government, Sanders said. But last year’s controversial Kelo vs. New London decision, in which the U.S. Supreme Court allowed the city of New London, Conn., to condemn several older residences so it could sell the land to a private developer who planned to build a hotel on the site, holds out the potential for abuse.

“It can happen here,” Sanders said. “It will happen through sleight of hand, where the government will take property from A and give it to B.”

Owens said she didn’t believe the con-demnation process would be abused locally “except perhaps in King Coun-ty.”

In fact, Sanders cited two recent examples of eminent domain abuse occurring in King County. During the construction of the Seattle Convention Center, he noted, the city annexed private land with the deliberate intention of selling what it didn’t need at a profit.

Later, the Monorail Authority appropriated land in downtown Seattle to construct a terminal, when it only needed only a fraction of the lot in question.

In both cases, the condemnation action was upheld by the state Supreme Court. Sanders noted his dissenting vote in the Monorail case, arguing the decision violated the intent of the law — that private property only be confiscated by the government for actual public use, not merely for public benefit.

Owens and Sanders also used the occasion of the Association of Realtors’ judicial forum to address more general questions about the workings of the state Supreme Court, including the merits of having to run for re-election rather than being appointed.

“It’s an advantage to have to go out and run for election,” Owens said. “It gets me out to meet people and see what their views are. The Temple of Justice, where we work, is like an ivory tower. When I went there the first time, it made me cry. I missed hearing the voices and laughter.

“It’s pretty isolated,” she said. “Running for election makes us lose that isolation and gets us out into the public eye, where you talk to people. And I like talking to people of all types.”

Sanders said candidates who feel disenfranchised by the system because they can be overspent miss the point.

“Many people view money as the enemy,” he said. “But the enemy is ignorance. We have a society where citizens can participate in several ways. They can vote, they can create initiatives, they can vote for or against initiatives. A lot of people are frustrated when the court votes on their issue, but they haven’t taken the time to understand what the judiciary is all about and what they can do to improve it.”

Owens devoted most of her allotted time to talking about procedure, what she called “Supreme Court 101.” For example, it is the Supreme Court that hears appeals from all state courts. The justices decide whether to hear cases by dividing into two groups of four, with the chief justice — the court’s ninth member — belonging to both groups.

While justices have discretion about which cases to accept, they must by law review all death penalty cases.

There are several levels of name scrambling, which assures random case assignments. And when they meet privately, justices speak in order of seniority.

“There are some of our secrets that I will never tell,” she said. “But there is never a dull moment on the bench.”

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