The Liberty Papers

Yesterday, the Maryland Court of Appeals ruled against the City of Baltimore in a lawsuit challenging it’s use of the so-called “quick take” procedure of eminent domain taking:

In a decision likely to force Baltimore to rethink its economic development strategy, Maryland’s highest court ruled yesterday that the city cannot continue using eminent domain to “run roughshod over the owners of private property.”

The state Court of Appeals, in a blunt opinion that harshly criticized the city’s favored property seizure technique, found Baltimore had no good reason to take a Charles North bar called The Magnet last year with a sped-up version of eminent domain called “quick take.”

Tim Sandefur of the Pacific Legal Foundation, which filed an amicus brief in the case, explains “quick takes” this way:

“Quick take” is a procedure that allows government to take immediate possession of property without going through the usual procedure in an eminent domain case. They take your property and then later deal with whether they had the right to do so.

Call it the “shoot first, ask questions later” method of property theft. In this case, though, as the Court of Appeals noted, the City could not demonstrate the type of immediate need necessary to justify a “quick take”:

Quick take, the state court pointed out, requires an agency to prove that it needs property urgently and for the public good. In this case, wrote Judge Dale R. Cathell, the BDC demonstrated neither.

“Agents of the City literally refused to answer any questions directed at the immediate need for this specific property, but appeared to have adopted the attitude that the City did not have to have a specific immediate need for the property, so long as sometime in the near or distant future they had such a need,” Cathell wrote. “This extraordinary power conferred upon the City … was not for the purpose of allowing such entities to use it ‘whenever they wanted to.'”

Judging by the procedure that was followed in this case, that’s exactly what Baltimore officials seemed to believe:

The city filed a quick take petition on The Magnet in March, gaining immediate possession of the property without a hearing.

Valsamaki learned of the seizure in a terse affidavit that stated: “The property … must be in possession of the Mayor and City Council of Baltimore at the earliest time in order to assist in a business expansion of the area.”

He had 10 days to challenge the seizure, which he did, calling the city’s stated reason for taking his property “patently insufficient.”

Of course, the Court of Appeals did not completely rule out the idea of the “quick take”, they have merely said that the City will have a higher burden to meet in establishing an immediate need for taking a piece of property without a hearing and without providing the property owner with due process.

And, as Professor Ilya Somin points out, the situation in Maryland is far from perfect even after this decision:

This is a strictly limited ruling. In addition to being based on statutory rather than constitutional law, it does not constrain the purposes for which government can condemn property, but merely requires it to prove that there is an “immediate necessity” for circumventing the usual procedural rules for takings (which include allowing the owner to challenge in court the government’s claim that the taking is for a legitimate “public purpose” as required by the state constitution).

Maryland courts define “public purpose” extremely broadly, having upheld the condemnation of property for “economic development” purposes in a 1975 decision, Prince George’s County v. Collington Crossroads, 339 A.2d 278, 287 (Md. 1975). This case is, of course, Maryland’s state constitutional equivalent of Kelo v. City of New London, which held that takings for economic development are permissible under the federal Constitution. As I have explained in numerous articles (e.g. – here), such condemnations provide tremendous scope for abuse, and rarely if ever succeed in fostering additional development that is worth its costs and is greater than what would have occurred through ordinary market transactions. Since Kelo, Maryland is one of fourteen states that have failed to enact any reform legislation at all, despite (or perhaps because of) the fact that the state is notorious for its dubious condemnations.

In Maryland as elsewhere, the battle against the property takers is far from over.