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Forum LOS ANGELES DAILY JOURNAL TUESDAY, FEBRUARY 22, 2005 PAGE 6 Give Eminent Domain a Chance: Law Supports City’s Redevelopment By Timothy J. Dowling the auto plant described the transforma- The Commentaries penned by the objective is legitimate, “the right to realize tion: “My job has really changed my life. influential Blackstone in the 1760s dis- it through the exercise of eminent I t is a wonder to behold the public rela- It keeps me going.” cuss takings and taxes in a single breath, domain is clear.” tions campaign being conducted by Too often we think of jobs strictly in suggesting that he viewed the underly- Although the Institute for Justice sug- the libertarian Institute for Justice and terms of numbers, but in addition to eco- ing public justifications for each to be gests these rulings are limited to their its supporters regarding Kelo v. City of nomic recovery they bring pride and new identical. Blackstone wrote that private facts, their reasoning is expansive and New London (04-108), the eminent hope to countless individuals. Eliminating parties could not infringe property rights repeatedly equates the scope of eminent domain case scheduled for oral argument unemployment also reduces the social ills to advance what he called “the gen- domain with the police power. And not today in the U.S. Supreme Court. Lost in that go with it, including spousal abuse, eral good of the whole community,” even the Institute for Justice argues that the institute’s media blitz is the story of alcoholism, crime and suicide. These pro- but the Legislature could do so economic development falls outside of an economically distressed community jects overwhelmingly benefit the most in upon the payment of just compen- the police power. whose leaders are desperately trying to need by putting a paycheck in their hands sation. The institute alternatively argues bring new hope to their fellow citizens. and enhancing public services for the mFrom colonial times and that for development projects that New London is a small city of 25,000 poor. throughout the early decades of depend on eminent domain, cour ts that sits at the mouth of the Thames Economic development projects such our republic, land frequently was should require local officials to prove River on Long Island Sound in Connecti- as New London’s are not sops to politi- condemned to benefit the public by that the project’s financial success is cut. The local economy has been strug- cally connected developers, as the Insti- promoting private economic inter- adequately “cer tain.” For complex gling for decades. In 1990, the state offi- tute for Justice suggests, but the heart ests, including manufacturing mills, undertakings, this unprecedented level cially designated New London as a “dis- and soul of good government. ferries, private roads, irrigation of judicial scr utiny often would be tressed” community in dire need of eco- There is no question that eminent ditches and mining easements. impossible. nomic growth. Six years later, the city domain is an awesome power that Constitutional scholars have con- It also would contravene decades of suffered another blow when the federal must be used pr udently. There are cluded that these practices sup- judicial deference to legislative decision- gover nment closed a major Navy many built-in checks on its use, includ- por t the view that the eminent making by requiring courts to second- research facility that had employed 1,500 ing the just compensation requirement, domain power is as broad as the guess the Legislature’s judgment on com- people. which motivates the taxpaying public to police power. plicated economic issues, a task the Local officials have worked tirelessly to ensure that the power is exercised only mGiven the text, structure and histo- courts themselves have said they are ill- address this economic deterioration. as a last resort. In deciding whether to ry of the Just Compensation Clause, it suited to perform. After years of careful planning, they restrict eminent domain further, how- is no surprise that the Supreme Court All the relevant legal indicia — plain adopted a comprehensive plan for a 90- ever, we need to keep the stakes clear- has unanimously and repeatedly held meaning, original meaning, historical acre waterfront redevelopment project ly in mind. By belittling our elected that the scope of the eminent domain sources, traditional practice, unani- consisting of commercial, retail and resi- representatives, the Institute for Jus- power is coterminous with the police mous and long-standing precedent, dential space, a public riverwalk, a hotel tice and its suppor ters rack up power. appropriate deference to the Legisla- and conference center, marinas and other cheap debaters points at the Just two terms ago in Brown v. Wash- ture and sound legal policy — weigh in public amenities. New London leaders expense of informed public discus- ington Legal Foundation, 538 U.S. 216 favor of New London. That is good expect the project to generate thousands sion. (2003), the court reaffirmed that the news not just for New Londoners, but of permanent jobs, as well as much-need- The tremendous public benefits that government may condemn property for for all people who care about the well- ed revenues to hire more teachers, flow from the use of eminent domain for any valid public purpose. In National being and prosperity of their communi- increase pay for police officers, provide economic development would be legally Railroad v. Boston & Maine, 503 U.S. ties. assistance to the poor and elderly and irrelevant, of course, if these condemna- 407 (1992), the court confirmed that fund other vital programs. tions were prohibited by the Constitu- eminent domain may be used for New London acquired the vast bulk of tion. They plainly are not. The Just any legitimate purpose even Timothy J. Dowling is chief counsel the land needed for the site through vol- Compensation Clause provides: “nor where it “results in the transfer of of the Washington, D.C.-based public untary transactions, but a few owners shall private property be taken for ownership from one private party to interest firm Community Rights held out. The Institute for Justice, counsel public use, without just compensa- another.” Counsel, which co-wrote an amicus for the holdouts, relentlessly casts the tion.” These holdings build on earlier unani- brief in support of New London on case as pitting unfeeling bureaucrats Constitutional theorists long have mous precedents in Hawaii Housing behalf of national organizations rep- against sympathetic landowners. The trial observed that the “public use” language Authority v. Midkiff, 467 U.S. 229 (1984), resenting state and local govern- court summed it up well, writing that is not phrased as prescriptive words of and Berman v. Parker, 348 U.S. 26 (1954), ments. while the city might be viewed by some limitation, but instead as descriptive icing which hold that where a government as an abstract entity, “the people behind on the cake. In other words, the constitu- these abstractions have a dream also … tional text could be read as presupposing for their city buffeted for decades by hard that every legislative taking is for public times and until recently declining use. prospects.” New London is not alone. Communi- ties across the country have used emi- The Instititute for Justice argues that the term “public use” should be read nar- rowly, limiting condemnations to situa- Appellate Court’s Decision in ‘Lockheed’ Was Correct, Mostly nent domain to bring new hope to their tions where the property will be publicly By Raphael Metzger That should have been the end of the rule of evidence that is contrary to the However, the Evidence Code does not residents. For example, Kansas City, owned or publicly accessible. On this court’s opinion. But the Lockheed court, in law established by our Supreme Court. allow courts to exclude expert opinion T Kan., had been burdened for generations view, government officials could con- he recent decision of the 2nd Dis- dicta, also based its affirmance on Evi- The Lockheed court had no power to merely because a trial court does not con- by poverty, crime and a stagnant econo- demn for roads, public buildings and reg- trict Court of Appeal in Lockheed dence Code Section 801(b), which states create a new rule of evidence. See, Cali- sider the basis for the expert’s opinion to my until it used eminent domain to ulated utilities, but not much else. Litigation Cases has prompted the that an expert may base an opinion “on fornia Court Reporters v. Judicial Council, adequately support “the particular opin- assemble land needed for the NASCAR Nonsense. The meaning of the word defense bar to proclaim that trial judges matter . . . that is of a type that reasonably 39 Cal.App.4th 15 (1995), “The Constitu- ion offered,” as the Lockheed court sug- Kansas Speedway. “use” is far more capacious than the now have the authority to determine the may be relied upon by an expert in form- tion reserves to the Legislature … the … gested in dictum. Courts are not qualified During the racetrack’s first season, Institute for Justice suggests. It scientific validity of expert medical testi- ing an opinion upon the subject to which right to provide rules of procedure.” Evi- to assess the validity of expert scientific $150 million flowed into the metropolitan embraces not only hands-on enjoyment mony. Not so. his testimony relates.” dence Code Section 351 states: “Except and medical opinions and have no author- area, including $70 million in wages for and consumption, but also benefit or The Lockheed court held that in render- Obviously, an expert cannot reasonably as otherwise provided by statute, all rele- ity under California law to make such new jobs. The vibrant retail shops that fol- advantage. Every law student learns that ing an expert opinion, an expert must rely rely solely on irrelevant data in rendering vant evidence is admissible.” Thus, pur- determinations. In fact, doing so invades lowed the racetrack development are a conveyance from “A to B for the use of on materials that are relevant to the sub- an opinion. Because the only studies that suant to the Evidence Code, an expert’s the province of jury of evaluating, deter- expected to generate employment for C” is for the benefit of C. Modern dictio- ject of the expert’s opinion. The rest of the the expert relied upon were irrelevant, mining the credibility, the reliability and about 4,000 people. In the words of one naries, including Black’s Law Dictionary, court’s opinion is unfortunate dictum. the expert’s opinion did not satisfy Sec- the weight of expert testimony. knowledgeable observer, the develop- define “use” to include benefit or advan- In Lockheed, a plaintiff’s medical expert tion 801(b). Indeed, several courts have recently ment is “a glorious success for this once- tage. opined that certain chemicals that are not However, the Lockheed court “construed” held that when trial courts engage in a struggling county.” The founders had the same under- carcinogens cause cancer. Of course, this Section 801(b) “to mean that the matter Daubert-type analysis, they violate a Resident Joyce Vaught, who once standing, as evidenced by Webster’s 1828 is ridiculous. How did the expert reach relied on must provide a reasonable basis plaintiff’s right to a jury trial. opposed condemnation of her land for the dictionary, which broadly defines “use” to such an absurd conclusion? The expert for the particular opinion offered.” In See, e.g., Howerton v. Arai speedway, now hails it as “amazing” and include a benefit or advantage. Public use reviewed many epidemiologic studies so doing, the Lockheed court sug- Helmet, Ltd., 348 N.C. “just a beautiful thing.” means, and always has meant, public ben- that show that exposure to mixed organic gested that trial courts may, under 440 (2004), “[W]e Mississippi, which ranks first in pover- efit. solvents increase the risk of cancer. The Section 801(b), decide not just are concerned that ty and last in per capita income, used emi- Historical sources support this analysis. results of the studies were not surprising, whether the matter trial courts assert- nent domain as it acquired 1,400 acres for The renowned jurist Hugo Grotius, who because organic solvents contain ben- on which an expert ing sweeping pre- a new automobile plant in Canton four coined the term “eminent domain,” assert- zene, a known human carcinogen, so relies is rele- trial ‘gatekeep- years ago. The plant has produced more ed in his 1625 classic De Jure Belli et chemical mixtures containing benzene vant, but ing’ authority than 5,000 jobs, and another 29,000 high- Pacis that eminent domain may be used would be expected to increase the occur- whether, as a under Dauber t wage positions are expected in the sur- “not only in the case of direct need … but rence of human cancer. matter of may unneces- rounding county by 2010. One worker at also for the sake of the public advantage.” However, based on these studies, the sound science sarily encroach expert opined that certain constituents of and medicine, it adequately supports upon the consti- mixed organic solvents, such as acetone, the expert’s conclusion. In other tutionally man- isopropyl alcohol and methyl ethyl ketone words, the Lockheed court suggested dated function of therefore cause cancer. that trial courts may engage in a the jury to decide In so opining, the expert made a funda- Daubert-type analysis under Evidence issues of fact and to mental error in logic. The error is appar- Code Section 801(b). In this dictum, the assess the weight of ent to any high school student who has Lockheed court erred. the evidence”; Brasher v. studied elementary logic: Assume that A In People v. Leahy, 8 Cal.4th 587 (1994), Sandoz Pharmaceuticals (acetone) or B (benzene) or I (isopropyl the California Supreme Court expressly Corp., 160 F.Supp.2d 1291 alcohol) or M (methyl ethyl ketone) rejected the federal Daubert standard in (2001), applying Dauber t, but CHARLES T. MUNGER GERALD L. SALZMAN cause C (cancer). Does it logically follow California. In Roberti v. Andy’s Termite & acknowledging that “[f]or the trial Chairman of the Board Publisher / Editor-in-Chief that A (acetone) causes C (cancer)? No. Pest Control Inc., Cal.App.4th 893 (2003), court to overreach in the gatekeep- J. P. GUERIN ROBERT E. WORK Logic dictates that the most one can con- the 2nd District Court of Appeal specifi- ing function and determine whether Vice Chairman of the Board Publisher (1950-1986) clude is that either A, B, I or M causes cally held that trial cour ts may not the opinion evidence is correct or wor- KATRINA M. DEWEY cancer — not that each one does. engage in a Daubert analysis or any other thy of credence is to usurp the jury’s Editor The Lockheed court perceived the error threshold evidentiary analysis in deter- right to decide the facts of the case”; DON J. DEBENEDICTIS in the expert’s logic: “The epidemiologic mining whether an expert’s opinion is Logerquist v. McVey, 196 Ariz. 470 Managing Editor studies that Dr. Teitelbaum relied on all admissible on the issue of causation in a (2000), “The Dauber t/Joiner/Kumho PAT ALSTON GALE HOLLAND JIM ADAMEK involved exposure to multiple solvents, toxic tort case. trilogy of cases … puts the judge in the Profiles Editor City Editor Regional Editor including solvents not at issue here. The Thus, the Lockheed court’s dictum con- position of passing on the weight or WENDY MAYA AMY KALIN HUGH WILLIAMS court concluded that the multiple-solvent travenes the Supreme Court’s decision in credibility of the exper t’s testimony, News Editor Legal Editor Photo Editor epidemiological studies showing an asso- Leahy as well as Roberti . something we believe crosses the line JANELLE FAIGNANT, Assistant News Editor ciation between exposure to multiple sol- Worse yet, in reaching this erroneous between the legal task of ruling on the CYNTHIA GOLDSTEIN, DAVID GRUNWALD, Copy Editors vents and various ailments did not sup- conclusion, the Lockheed court misinter- foundation and relevance of evidence port the conclusion that any one of the preted Evidence Code Section 801(b), and the jur y’s function of whom to Los Angeles Staff solvents at issue here can cause a dis- which merely requires that the type of believe and why, whose testimony to GARRY ABRAMS, BLAIR CLARKSON, DAN EVANS, DAVID HOUSTON, ADRIANNA KHOO, LORELEI LAIRD, ease. We conclude the court’s conclusion DRAEGER MARTINEZ, SUSAN MCRAE, RYAN OLIVER, DON RAY, JOHN RYAN, LESLIE SIMMONS, matter on which an expert relies be of the accept, and on what basis”; Bunting v. TINA SPEE, LIZ VALSAMIS, GENEVA WHITMARSH, ERON BEN-YEHUDA, Staff Writers was sound.” type that qualified experts consider in Jamieson, 984 P.2d 467 (1999), adopting ROBERT LEVINS, Photographer The Lockheed court reasoned that all of reaching opinions on the subject. There Dauber t, but nonetheless expressing KENNETH DAVIS, ALLISON SCHIFANI Editorial Assistants the epidemiologic studies on which the was nothing wrong in the exper t’s concern that “application of the Daubert San Francisco Staff expert relied did not in reason tend to reliance on published, peer-reviewed epi- opinion must be admitted provided that it approach to exclude evidence has been MARTIN BERG, Editor, MICHAEL MOLINE, Managing Editor prove that any particular chemical in the demiologic studies and monographs of is relevant and is not otherwise exclud- criticized as a misappropriation of the CRAIG ANDERSON, PETER BLUMBERG, ERIK CUMMINS, TYLER CUNNINGHAM, toxic soup causes cancer, and were there- the International Agency for Research on able pursuant to a specific statute. jury’s responsibilities. . . . ‘[I]t is impera- DONNA DOMINO, ANNA OBERTHUR, DENNIS OPATRNY, fore not relevant to the issue of whether Cancer in rendering an opinion on cancer The Evidence Code allows courts to tive that the jury retain its fact-finding DENNIS PFAFF, JOHN ROEMER, AMY SPEES, ROBERT SELNA, Staff Writers S. TODD ROGERS, XIANG XING ZHOU, Photographers acetone or isopropyl alcohol causes can- causation. Rather, the expert’s error was exclude the opinions of scientific and function.’” cer. Because the expert relied only on in relying on studies that were irrelevant medical experts when their opinions are In conclusion, the Lockheed cour t Daily Journal EXTRA studies that were irrelevant to the issue, to the case. not relevant (Evidence Code Section reached the right conclusion based upon MELISSA ANDERSON, Editor STEFANIE KNAPP, Managing Editor his opinion was likewise irrelevant and In drafting Evidence Code Section 350); when the expert is not qualified an ordinary relevance determination, but ARIS DAVOUDIAN, Design Editor was properly excluded as being irrele- 801(b), the Legislature carefully chose its (Evidence Code Section 720(a)); when erred in its dictum, which misinterpreted vant. See, California Evidence Code Sec- words. It said that the matter on which an the expert’s opinion does not “relate to a Evidence Code Section 801(b). The les- Bureaus BRENT KENDALL, Washington, D.C. tion 350 (“No evidence is admissible expert relies must be such as an expert subject that is sufficiently beyond com- son to be learned from Lockheed is that LINDA RAPATTONI, HUDSON SANGREE Sacramento except relevant evidence”). would reasonably rely in forming an opin- mon experience” and therefore would not expert testimony must be relevant — and CLAUDE WALBERT San Diego, JASON W. ARMSTRONG Riverside, TIM WILLERT Orange County ion “upon the subject to which his testi- “assist the trier of fact” (Evidence Code that bad cases make bad law. Rulings Service mony relates” not “for the particular Section 801(a)); and when the probative JULIE SUNG, Rulings Editor, STEPHEN MAITLAND-LEWIS, opinion offered.” By so “construing” Evi- value of the expert’s opinion is “substan- POLIN MARDIROSSIAN, CYNTHIA PRADO, JOSH SOLBERG, Legal Writers Submissions dence Code Section 801(b), the Lockheed tially outweighed by the probability that Raphael Metzger is the principal of AUDREY L. MILLER, Corporate Display Advertising Director The Daily Journal welcomes your opin- court violated the fundamental rule of its admission will necessitate undue con- the Metzger Law Group, a plaintiffs MONICA FORTHUN, MARIA RAMIREZ, MICHELLE WRIGHT, Account Managers ions. Send articles of no more than statutory construction that where the lan- sumption of time, or create substantial firm specializing in toxic tort litigation. CLAUDIA HUITRON, Display Advertising Coordinator guage of a statute is clear, its plain mean- danger of undue prejudice, of confusing 1,500 words to amy_kalin@ He was not involved in the Lockheed The Daily Journal is a member of the Newspaper Association of America, dailyjournal.com. ing must be given effect. In so doing, the the issues, or of misleading the jury.” Evi- litigation. California Newspaper Publishers Association, National Newspaper Association and Associated Press Lockheed court, in dictum, created a new dence Code Section 352
"It is a wonder to behold the pub"