Empowerment in Eminent Domain Disputes and Litigation: A Community-Lawyering Approach

1. Empowerment in Eminent Domain Disputes and Litigation: A Community-Lawyering Approach Tarisai Kuvhenguhwa, University of California, San Diego, Urban Studies and Planning Program Background Research Methods Does an increased amount of community mobilization (on the part of the private property owners), coupled with more open pathways of communication and input between legal representatives and these clients, result in more satisfactory case resolutions? • Eminent domain, the government’s state power to legally take private property for public use, has remained a controversial subject since its inception. • However, the manner in which these civil disputes are tried, challenged, and litigated have proved even more divisive; especially when private developers have approached redevelopment agencies (of local governments) to assist them in acquiring land that is already possessed by a home- or local business-owner. • The Kelo v. New London (2005) Supreme Court decision, which expanded the power’s usage, incited a public backlash across the country that led to many misconceptions and misgivings surrounding the redevelopment machine employing this power. • However, California, as well as over 40 other states, have created statutes intended to limit eminent domain abuses and overuses • Much of the frustration in these cases emanated from a lack of understanding the procedures involved, their rights as private property owners and members of a community, and the government’s legal obligations (and restrictions) in these situations • Spatial dimension: the central, downtown San Diego metropolitan area over the last 10 years • Interviewed: 2 eminent domain attorneys, a city attorney, a civil trial judges, an urban planner (Redevelopment Agency), 2 law school professors, former government employees (a relocation officer, who also served as Executive Director of the SD Redevelopment Agency; and an Urban Studies & Planning professor, who was also a former Executive Director and played a major role in redevelopment projects downtown) • Watched over 80 archived city council meetings: Land Use & Housing and Ah Hoc Redevelopment Agency committees (2005-2012) for community perspectives Table 1. Notable Findings Conclusions • When property owners are better informed of the process (which includes their rights), maintain realistic expectations of potential resolutions, and work together with attorneys in a more equal partnership (esp. when the dispute effects more than one individual), this combination of engaged activity can contribute to more satisfactory outcomes. • Therefore, this inquiry concluded that there can be a connection between increased client satisfaction (based upon what the property owners’ objectives are), and increased property-owning, community member engagement. • Even though the nature of my project exposed itself to differing experiences among the interview subjects, some common perspectives did emerge from the individuals I interviewed, despite their differing professions and work environments. • PAC’s (Project Area Committees, composed of elected community members to liaise between the community-at-large and the redevelopment agency) that have their own legal counsel, may prove to be a fruitful, large-scale case study of community-oriented lawyering. Existing Literature • Proponents of community-oriented lawyering wondered if they “inevitably disempower their clients in the process of representation itself,” when employing the traditional “directive” model (i.e. clients assume a more passive role, while the legal representatives make most of the decisions on how to proceed with less input from them) • Harris et al. found that in addition to their “role translating community ideas into legal arguments, the presence of lawyers can confer legitimacy on a community struggle” when confronting a government entity claiming to be acting out of the interests of the public community when seeking private property • Community-oriented lawyering encourages a more equal partnership: with more open pathways of communication and creating a dynamic that encourages and effectively empowers clients to be able to advocate for themselves, and potentially even their collective community, in the future • There was very little academic literature that focused specifically on how attorneys approach eminent domain and redevelopment cases with their community member clients. • This study was aimed at investigating the nature of the attorney-client advocacy approach and process during eminent domain disputes, in an effort to unearth factors that may or may not contribute to a more satisfactory (and thus more successful, in the eyes of the property owner) case outcome. • Finding #1: The Compensation Factor and its Influence • Most of the time the dispute in these cases is over “just compensation” (the monetary sum awarded for the forced property sale) • Property owners (homeowners more than business owners) tend to attach a subjective value (i.e. a more sentimental perception of worth) to their properties • The law, however, only recognizes the “fair market value”, which is a more objective (and formulaic) appraisal of the space’s worth • The jury tends to award an average amount between the property owner’s appraisal and the government’s in most cases • Finding #2: Legal Illiteracy • There is a clear disconnect between the legal education levels between clients and attorneys; but especially in eminent domain cases. • Eminent domain lawsuits have a completely different set of rules for procedure, discovery, evidence, and testimony than any other type of civil litigation • Every interview subject mentioned and/or discussed this being a prominent issue, except for one • Legal literacy can not only be increased through encouraging, honest, and efficient communication between attorneys and clients, but also by the clients attempting to educate and inform themselves on the process through legitimate channels Resources 1. Allen, Tom, D. Benjamin Barros, Carole Necole Brown, Eric R. Claeys, Rachel D. Godsil, Robin Paul Malloy, Marc R. Poirier, David Simunovich, James Charles Smith, and Michael Allen Wolf. Private Property, Community Development, and Eminent Domain. Edited by Robin Paul Malloy. Burlington: Ashgate Publishing Company, 2008. 2. Dominguez, David. “Getting Beyond Yes to Collaborative Justice: The Role of Negotiation in Community Lawyering.”Georgetown Journal on Poverty Law & Policy 12, no. 1 (Spring 2005): 55. 3. Fleck, Robert K., and F. Andrew Hanssen. “Repeated adjustment of delegated powers and the history of eminent domain.”International Review of Law and Economics 30, no. 2 (June 2010): 99-111. Economy of Urban Development.”California Law Review 95, no. 5 (October 2007): 1999-2072. 5. Garnett, Nicole Stelle. “The Neglected Political Economy of Eminent Domain.”Michigan Law Review 105, no. 1 (October 2006): 102-150. 6. Harris, Angela, Margaretta Lin, and Jeff Selbin. “From ‘The Art of War’ to ‘Being Peace’: Mindfulness and Community Lawyering in a Neoliberal Age.”California Law Review 95, no. 5 (October 2007): 2073-2132. 7. Lehavi, Amnon and Amir N. Licht. “Eminent Domain, Inc.”Columbia Law Review107, no. 7(Nov., 2007): 1704-1748. 8. Miceli, Thomas J. and Kathleen Segerson. The Economics of Eminent Domain: Private Property, Public Use, and Just Compensation. Hanover: now Publishers, 2007. 9. Nadler, Janice and Shari Seidman Diamond. “Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity.”Journal of Empirical Legal Studies 105, no. 4 (December 2008): 713-749. 10. Wall, James A., John B. Stark, and Rhetta L. Standifer. “Mediation: A Current Review and Theory Development.”The Journal of Conflict Resolution 45, no. 3 (June 2001): 370-391. 11. Background image source: http://www.voiceofsandiego.org/clipboard/article_cf859c68-3259-11e1-bd39-0019bb2963f4.html • Finding #3: Involved vs. Engaged Property Owners • It appears as though if the owner (especially a homeowner) feels included in the process (by given opportunities to do so) by their representative, then they tend to feel less alienated throughout the process, feel their needs have been addressed, and feel more satisfied with the end result (this has often been the case in mediation; where the client is physically present for negotiations with the opposing side) • Client involvement exists on a spectrum of participation: the degree of desired and permitted engagement and involvement is highly dependent on each unique property owner (and their case) • Some are very interested and eager to be actively included every step of the way, some only want to be informed of major milestones in the case, while others opt to not challenge the condemnation and just accept the government’s initial offer • The quality and demeanor of the attorney also factors in; though they are legally and ethnically bound to inform their clients and communicate with them the process and details of the case; but their participation may stop at involvement, and not reach a level of engrossed, but beneficial, engagement I interviewed eminent domain attorneys who represented the city government and private property owners in land assembly disputes, regarding Petco Park’s construction (early 2000’s). Photo by author. March 15, 2012