Commentary: On Eminent Domain - Crafting a doctrine on condemnations/

The 172nd anniversary of the landmark decision of the U.S. Supreme Court in Barron v. Baltimore very nearly coincides with next week's oral arguments in Kelo v. New London and Lingle v. Chevron, two cases widely regarded as the most important condemnation/ takings cases before the court in 50 years.

Barron v. Baltimore, in its day, i.e., 1833, dictated constitutional doctrine for nearly a century. Scholars, land use lawyers, developers, governmental planners and the media now wait, anxiously, for Kelo and Lingle to craft constitutional doctrine for the foreseeable future.

Barron v. Baltimore was one of the last major rulings of Chief Justice John Marshall. Its doctrinal pronouncement limited the scope of the Bill of Rights to protection from Acts of Congress and other acts of the federal government. The states, Barron held, were not constrained by the federal Bill of Rights.

In powerfully determinative language, Chief Justice Marshall wrote:

These amendments [i.e. the Bill of Rights] contain no expression indicating an intention to apply them to state government. *** [Consequently,] the provision in the fifth amendment, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by ... the United States and is not applicable to the states.

This constraining doctrine was undercut by the adoption of the Fourteenth Amendment. Various provisions of the Bill of Rights, however, were not incorporated through that Amendment to apply against the states by judicial interpretation until the 20th century. Unlike other provisions of the Bill of Rights, the protection against private property being taken for public use without just compensation was easily applied to the states because of explicit due process clause in the Fourteenth Amendment.

Indeed, one of the grounds for adoption of the Fourteenth Amendment was to eliminate the constraining doctrine stated in Barron.

What was Barron about? The owner of a wharf, with deepest water in Baltimore's harbor, according to the report of the Barron case, in the eastern section of Baltimore was aggrieved when, by city ordinances regulating the harbor and commanding the paving and grading of streets, the water at his wharf was rendered so shallow that the wharf became useless for vessels of any burthen. The wharf's owner claimed that Baltimore's actions had made the wharf of little or no value.

After trial in the Baltimore County Court, a judgment of $4,500 was entered against Baltimore, but, according to the Supreme Court's report, that decision was reversed on appeal in Maryland. Deprived of the princely sum of the verdict, the wharf-owner's estate sought writ of error to the Supreme Court, which, as noted above, granted no relief under the Fifth Amendment.

Barron provides various curiosities and insights.

One surely rises from the fact that there was no physical taking of the wharf. The claimant sought relief, nonetheless, under what could later be dubbed inverse condemnation. A modern review of that doctrine was stated in 1987 by the Court of Appeals in Md. Port Admin. v. QC Corp., which gave no relief to the claimant.

Another intriguing aspect of Barron is the Supreme Court's notation that the Maryland appellate court was the court of appeals for the western shore. In 43 years at the bar, I have never come across that antiquity before reading Barron. This state's appellate decision, regardless, deprived the property owner of his verdict. Was this a precursor to the reluctance of Maryland courts to uphold damages against a municipality or the state?

Will such judicial reluctance impact the ultimate decision in either Kelo or Lingle, set for argument on Tuesday? We should know by the end of June.

As we wait for the Supreme Court's decisions in those cases, several recent developments should be reported.

First, the Legal Times reported on Feb. 7 that Acting Solicitor General Paul Clement did not file for the United States an amicus brief in support of the condemnation by New London, Conn., of private homes for ultimate transfer to a developer for an economic development project. According to the Legal Times report, the decision of the Solicitor's Office to sit out argument followed a heavy campaign by people feeling very strongly about property rights. New London's counsel, the Legal Times reported, was given no explanation for the Solicitor's silence on Kelo.

Lingle is a different type of taking case. Unlike Kelo, which fights a condemnation action, Lingle is a case where Hawaii seeks to overturn a 9th U.S. Circuit Court of Appeals' decision predicated on that court's perception of a taking by a substantive act of the state legislature.

Chevron challenged a Hawaii statute proscribing the maximum rent that oil companies could collect from dealer-leased service stations. A panel of the 9th Circuit held, 2-1, that the Hawaii law did not substantially advance the lowering of consumer gasoline prices and, consequently, was a regulatory taking. 363 F.3d 846. Such takings have long been considered in the context of Pennsylvania Coal Co. v. Mahon, and the notion, articulated there by Justice Holmes, of whether the state's regulation had gone too far, was explained and examined, in 1974, by the Maryland Court of Appeals in Bureau of Mines v. George's Creek Coal & Land Co.

The argument in Lingle will proceed in the wake of Hawaii becoming, on Feb. 1, the first state to regulate gasoline prices, according to the Honolulu Advertiser.

We await, in anxious anticipation, what the Supreme Court will have wrought after oral arguments in Kelo and Lingle.

M. Albert Figinski, former judge of the Circuit Court for Baltimore City, now practices at the Law Office of Peter G. Angelos. The views expressed are his own.

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