425-453-6206 / Facsimile 425-453-6224 /
Washington State Supreme Court Allows Sound Transit to Arbirtrarily Take Private Property for the South Tacoma Sounder Rail Station
The Washington Supreme Court yesterday 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."
Click here to watch the oral argument in the Supreme Court
Additional articles on this case:
Mike Baker, Squabbling Derails Bills on Land Grabs, Tacoma News Tribune (Feb. 27, 2006).
Peter Callaghan, Court's Ruling on Public Notice Falls Short of Fair, Tacoma News Tribune (Feb. 19, 2006).
Editorial, More arbitrary taking of land by the court, Seattle Times (Feb. 19, 2006).
