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                                                                                                              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

				
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