Judicial Review of Takings

The mode and manner of the exercise of the power of eminent domain is exclusively vested in the judgment and discretion of the legislature[i].  The scrutiny by the courts in appropriation cases is limited in scope but it clearly remains as a critical constitutional component[ii].  The court will not substitute its judgment for a legislature’s judgment as to what constitutes a public use unless the use is palpably without reason.

However, there is a role for courts to play, although a narrow one, in reviewing a legislature’s judgment of what constitutes a public use, even when the eminent domain power is equated with the police power.  Deference to the legislature’s public use determination is required until it is shown to involve an impossibility[iii].

Any departure from this judicial restraint can result in courts deciding on what is a governmental function and invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields[iv].  The U.S. Supreme Court has made clear that it will not substitute its judgment for a legislature’s judgment as to what constitutes a public use unless the use be palpably without reasonable foundation[v].

The power and the obligation of eminent domain plays a critical role in constitutional governance and courts are obligated to carefully monitor its exercise.  The exercise of the power of eminent domain is not entirely beyond judicial scrutiny.  Under a statute relating to eminent domain, a condemnation defendant may seek judicial review regarding the egality of the proceedings and whether the condemning entity has the legal authority and right to condemn.

It was observed in Twp. of W. Orange v. 769 Assocs., 172 N.J. 564 (N.J. 2002) that a reviewing court has no power to upset a municipality’s decision to use its eminent domain power in the absence of an affirmative showing of fraud, bad faith, or manifest abuse.  It was also observed that courts must defer to legislative bodies on questions implicating the state’s sovereign authority.

Judicial deference is required because legislatures are better able to access what public purposes must be advanced by an exercise of the taking power.  Therefore, if a legislature determines that there are substantial reasons for an exercise of the taking power, then courts must defer to its determination that the taking will serve a public use[vi].

Although it is narrow in scope, judicial review is not meaningless in eminent domain cases.  Defining the parameters of the power of eminent domain is regarded as a judicial function.  It was observed in City of Norwood v. Horney, 110 Ohio St. 3d 353 (Ohio 2006) that when the state takes the private property of an individual for transfer to another individual rather than for use by the state itself, then judicial review of the taking is considered to be important.

[i] Utilities, Inc. v. Washington Suburban Sanitary Comm’n, 362 Md. 37 (Md. 2000).

[ii] City of Norwood v. Horney, 110 Ohio St. 3d 353 (Ohio 2006).

[iii] Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (U.S. 1984).

[iv] Id.

[v] Richardson v. City & County of Honolulu, 124 F.3d 1150 (9th Cir. Haw. 1997).

[vi] Twp. of W. Orange v. 769 Assocs., 172 N.J. 564 (N.J. 2002).


Inside Judicial Review of Takings