It Was 30 Years Ago Today...

by Robert Thomas, InverseCondemnation, May 30, 2014

...No, not Sgt. Pepper. It was on this day in 1984 that the U.S. Supreme Court issued its 8-0 decision in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), as this article ("Today in 1984: SCOTUS Upholds Hawaii Land Redistribution Eminent Domain Plan") correctly notes.

Check it out. The author, "an attorney practicing in the areas of family law and estate planning" (?) does a good job and asks valid questions:

Why was there so little outcry against Midkiff, which involved a government takings program far vaster than that at issue in Kelo? For one, there has been a rise in general distrust of government among the populace between Midkiff and Kelo. But, perhaps more significantly, as noted in an earlier Today in Legal History installment, Kelo’s property transfer was, generally speaking, from poor to rich, whereas Midkiff’s transfers were the other way around.

We have wondered the same thing. What the author may not know is that the public vibe, at least in Hawaii, has shifted regarding the wisdom of the use of eminent domain to take property from landed alii trusts. When a measure was proposed to create a similar land reform act applicable to condominium property regimes (the LRA at issue in Midkiff applied only to single-family residential), the legislature rejected it. A similar ordinance was eventually adopted by the City and County of Honolulu, and ultimately upheld under Midkiff by the state and federal courts from public use challenges. But after several years of implementation, the city council repealed the law due to public outcry. So times have definitely changed, even though we suspect that this has more to do with Hawaiian empowerment than it does a distaste for eminent domain generally.

We've also questioned Midkiff's core holding: is an exercise of the domain power really the same as an exercise of police power? In Midkiff -- and most recently confirmed by the majority in Kelo -- the Court told us that eminent domain was just another land use regulatory tool, like zoning, so deserved to be reviewed by the court under the same deferential "rational basis" standard, or perhaps with even less scrutiny under the no-standard Berman standard ("well-nigh conclusive").

The author of the article suggests that the result might be different were Midkiff before the Court today, and we think he's probably right, although there may not be enough votes to overrule it entirely. Read his entire piece here.

---30---