TAKING LIBERTIES WITH TAKINGS IN WASHINGTON^*

By the Honorable Richard B. Sanders

While the text of Constitution, Article I, § 16, amend. 9, and U.S. Constitution Fifth Amendment significantly differ, no modern Washington authority undertakes an independent interpretation of the state constitutional provision on eminent domain. See Presbytery of Seattle v. King County, 114 Wn.2d 320, 328 n.10, 787 P.2d 907, cert. denied, 498 U.S. 911, 111 S. Ct. 284, 112 L. Ed. 238 (1990). This may be the case because lawyers (like me) declined to brief the issue pursuant to the criteria set forth in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986) or perhaps because the court sidestepped the issue, deferring an independent analysis which might require a radical departure from current practice.

Perhaps the reluctance of counsel to explore the depths of a truly independent interpretation of Washington’s eminent domain provision can be explained by the very natural psychological reluctance to sail uncharted waters, murky ones at that. However a renewed political and judicial interest in the takings issue at both the state and national level seems to indicate the tide is turning and the breeze is freshening, especially with regard to alleged "regulatory takings" resulting from use restrictions.

SHIP’S PROVISIONS

Besides the all important text of Article I, § 16, one must begin by taking stock of available resources.

One resource as little known as it is valuable is a series of student term papers prepared for Justice Robert Utter’s U.P.S. Law School course on state constitutional law, now taught by Justice Charles Johnson (who has collected and maintained the papers under the state constitutional provision to which they pertain). Special thanks therefore goes to the following law students, most of whom are now practicing attorneys—your unwitting shipmates: Tanya Button, Mary Helen Carrosino, Thomas M. Ellington, Tracy Douglas Forsythe, Richard Piccioni, Robert Raymond, and William G. Simmons.

To this bold beginning one may well add "A Constitution Adapted to the Coming State, Suggestions by Honorable W. Lair Hill" (hereafter "Hill"), published in the Morning Oregonian on July 4, 1889, the first day of Washington’s Constitutional Convention (KF 4530 H56). Convention delegates utilized Hill’s working draft with commentary as a starting point for their constitutional deliberation.

Several other resource documents are available in the library regarding constitutional history in this state, including James Leonard Fitts’ "The Washington Constitutional Convention of 1889" (KF 4512 F58 1951) (a master’s thesis) as well as Wilfred J. Airey’s doctoral thesis: "A History of the Constitution and Government of Washington Territory," (U.W. 1945) (KF 4541 A957 1945).

Professor William B. Stoebuck’s Nontrespatory Takings in Washington (Butterworth 1980) (hereafter "Stoebuck") and related texts and articles prepared by Professor Stoebuck provide a welcome foundation to further inquiry which include the philosophical underpinnings of the eminent domain provision as well as case law construing the provision in this state as well as the 26 states that have adopted a similar provision. Stoebuck at 9.

THE PROMISED LAND

If our voyage is successful we will discover answers to several questions:

1. Does the requirement that "no private property shall be taken or damaged . . . " provide a broader right than similar language in the Fifth Amendment which states ". . . nor shall private property be taken . . . ", particularly with respect to nontrespatory regulation of use?

2. Can inverse condemnation exist in the State of Washington in light of the state constitutional requirement that "just compensation having been first made, or paid into court for the owner. . . ."?

3. Are presumptions that the government acts legitimately inconsistent with the requirement that the public nature of a use be determined ". . . without regard to any legislative assertion . . . ."?

While the answers to these questions remain over the horizon, the text of Article I, § 16, promises a land of discovery at the end of an odyssey of adventure.

CHARTING THE COURSE WITH THE TEXT

The text of Washington Constitution, Article I, § 16, amend. 9, Eminent Domain, is our treasure map. It differs significantly in text from its Fifth Amendment cousin.

Some of the textual differences may be summarized as follows:

It is the thesis of this writer that the original text is the most reliable chart to discovery of a truly independent, and accurate, interpretation of the Washington eminent domain provision and that everything else is logarithmically less important. Gunwall sets forth factors to be considered but does order their relative importance.

The greatest modern champion of Washington’s Constitution is undoubtedly retired Justice Robert F. Utter, who drew the loose ends of constitutional interpretation together in coherent form in his law review article, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491 (1984) (hereafter "Utter"). Under the heading "How to Analyze the Washington Declaration of Rights," Justice Utter divides the topic in two: "Textual Analysis" and "Intent of the People." Under the former heading he opines that a textual analysis of the Constitution is generally subject to the same maxims as a textual analysis of statutory law and adds it is undisputed that "if a constitutional provision is plain and unambiguous on its face, then no construction or interpretation is necessary or permissible." Utter at 509 quoting State ex rel. Anderson v. Chapman, 86 Wn.2d 189, 191, 543 P.2d 229, 230 (1975). See also Washington Economic Dev. Fin. Auth. v. Grimm, 119 Wn.2d 738, 837 P.2d 606 (1992) (supreme court will not construe or interpret constitutional provision that is plain or unambiguous).

As if to underline this fundamental point, which scarcely permits any other, Utter observes that the object of constitutional interpretation is to reflect and apply the intent of the people who ratified the document rather than the intent of the handful of men who wrote it. Utter at 512. See also Boris I. Bittker, Interpreting the Constitution: Is the Intent of the Framers Controlling? If Not, What Is?, 19 Harv. J.L. & Pub. Pol’y 9 (1995). Therefore it is a mandate of constitutional construction that words be given the literal meaning ascribed to them by the ordinary citizens at the time of the constitution’s popular ratification in October 1889.

Justice Joseph Story announced

A few maxims of constitutional construction might well be recalled:

The court should never allow a change in public sentiment to influence them in giving the construction to the written constitution not warranted by the intention of the founders. State ex rel. O’Connell v. Slavin, 75 Wn.2d 554, 452 P.2d 943 (1969). The meaning of the state constitution was fixed at the time it was adopted and must be construed in the sense in which the framers understood it. Boeing Aircraft Co. v. Reconstruction Fin. Corp., 25 Wn.2d 652, 171 P.2d 838 (1946). A constitutional provision should receive a consistent and uniform interpretation. Even though the circumstances may have changed to make a different rule seem more desirable, the constitution should not be taken to mean one thing at one time and another at another time. State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 273 P.2d 464 (1954). Nor is it the role of the supreme court to engraft exceptions where none are expressed in the constitutional provision, no matter how desirable or expedient such exception might seem. State ex rel. O’Connell v. Port of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965).

Of course state courts have the power to interpret their constitutional provisions as more protective of individual rights than parallel provisions of the United States Constitution. Such independent interpretation is particularly appropriate when the language of the state provision differs from its federal counterpart. State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980). However the supreme court is not at liberty to disregard the fundamental nature of the state constitution in order to advance theories that may be perceived by some to constitute desirable social policy. Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wn.2d 413, 780 P.2d 1282 (1989).

While the importance of the text may seem self-evident, it is submitted it is anything but trivial. If true that it is the text, and the ordinary meaning of words in that text, which is the ultimate rule of constitutional construction, that text must prevail against any and every argument which leads to an inconsistent conclusion.

Perhaps these considerations are particularly important with respect to Article 1, § 16, since alternative approaches so often lead to results which simply cannot be reconciled with the text or, for that matter, each other (although supported by ample precedent).

It may be appropriate to measure the relative importance of other relevant Gunwall factors against the ultimate textual standard.

1. The Text

Lund v. Idaho & W.N.R.R., 50 Wash. 574, 576, 97 P. 665 (1908). Without fear of contradiction our court has consistently defined property broadly. Our supreme court has repeatedly stated:

Wandermere Corp. v. State, 79 Wn.2d 688, 692, 488 P.2d 1088 (1971) (quoting from Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960). Cf. William B. Stoebuck, Nontrespatory Takings in Washington (Butterworth 1980) at 7.

Lawson v. State, 107 Wn.2d 444, 456-457, 730 P.2d 1308 (1986).

While it is up to each state to define property for itself, the right to use one’s property has been universally understood to be a fundamental attribute of real property ownership. Compare Eaton v. B.C. and M.R.R., 51 N.H. 504, 511-512 (1872) ("the framers of the Constitution intended to protect property rights which are worth protecting; not mere empty titles . . . among those elements is, fundamentally, the right of use . . . ") and Lord Coke: "to deprive one of the use of his land is depriving him of his land. What is the land but the profits thereof?" See also John M. Groen and Richard M. Stephens, Takings Law, Lucas, and the Growth Management Act, 16 U. Puget Sound L. Rev. 1259, at 1266, 1295 (Spring 1993).

The terms "taken or damaged" are here considered together because (1) they appear together in the original constitutional text and (2) the meaning of one is often explained by comparison to the meaning of the other. Wandermere Corp. v. State, 79 Wn.2d 688, 693, 488 P.2d 1088 (1971) provides definition and distinction:

The Wandermere definition is consistent with the more fundamental canon of statutory construction that different words when used in the same text must mean different things. See, e.g., State ex rel. Public Disclosure Comm’n. v. Rains, 87 W.2d 626, 634, 555 P.2d 1368 (1976).

However Highline School Dist. v. Port of Seattle, 87 Wn.2d 6, 11, 548 P.2d 1085 (1976) contains confusing language suggesting, perhaps in dicta, that there is really no difference between "taking" and "damaging." See also Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 12, 829 P.2d (1992) (dicta). However Highline preceded Gunwall by about ten years and evidenced no deliberate intent to define or redefine these terms for the purpose of establishing their independent meaning in Article I, § 16.

2. Proceedings at the State Constitutional Convention

The Washington State Constitutional Convention was convened on July 4, 1889 and utilized a draft constitution prepared by W. Lair Hill as its model. Hill’s draft with commentary was published in the Morning Oregonian, July 4, 1889, page 9, and served as the starting point for the convention.

Hill had a familiar 19th Century reverence for the importance of rights associated with property. His introduction to the Washington Declaration of Rights characterizes the enumerated rights as "natural," and "unalienable," "sacred and invoidable" "such as the right . . . to acquire and own property . . . ." Id. vii.

Hill’s proposed text for Article I, § 16, differed from that finally accepted:

Hill specifically referenced the "or damaged" text as a necessary addition to the Constitution to protect the rights of the individual from indirect deprivations of property not falling within the prohibition against taking private property.

Clearly Hill, at least subjectively, believed the prohibition against damaging added protections to the property owner beyond that associated with the term "taking."

But here is the rub: Hill apparently understood the term to reference adverse consequences visited upon neighboring property by public acquisitions of land. ("These words give redress for all damages which are the direct, natural and immediate results of the taking of property for public use even through the property actually taken did not belong to the person so damaged.") However, this may not mean Hill would have opposed government payment of compensation for "damaging" where nobody’s land was actually "taken" (e.g., by regulation/use restrictions) although other possible applications of the term not involving any taking at all seemed to have been outside his contemplation or experience since the advent of aggressive public use restrictions came decades later.

Therefore it could be argued that Hill’s subjective view of the term "damaging" is broader than the dicta in Highline School District but still substantially narrower than the literal meaning of the text in 1889 Washington.

3. Judicial Precedent/History in Other States.

"Damaging" was apparently first added to a constitutional prohibition against taking property without just compensation by amendment to the Illinois State Constitution in 1870. This history is retraced in City of Chicago v. Taylor, 125 U.S. 161, 8 S. Ct. 820, 31 L. Ed. 638 (1888). It is also interesting to note that Taylor was decided just the year before the 1889 Washington Constitution was adopted and ratified. Taylor holds:

The decision went on to apply the language to change in a road grade which thereby denied the property owner access, hence "damaging" his property while not "taking" it.

This "change in road grade" application seems to be fairly typical of other jurisdictions, few of which have literally applied the "damaging" text to regulatory use restrictions.

4. Early Washington Precedent on "Damaging"

The earliest reported case on Article I, § 16’s use of the term "damaging" is Brown v. City of Seattle, 5 Wn. 35, 31 P. 313 (1892). This decision is attached in its entirety since it is often not available in smaller law libraries. Although it is a change of grade case the language and implications seem to go substantially beyond its facts; although Fletcher v. City of Seattle, 43 Wn. 627, 629, 86 P. 1046 (1906) purported to limit its holding to change of grade as opposed to establishing a new grade.

Brown is somewhat remarkable because it granted an injunction against the City of Seattle pursuant to Article I, § 16 against lowering the grade of a public street so as to deny access to the property owner. This is remarkable because in the usual inverse condemnation situation government acts first, leaving the property owner to subsequently litigate for damages or invalidation. Such a holding also has arguable bearing upon claims that litigation arising under Article I, § 16, is premature or "not ripe," i.e., if the government acts, or is expected to act, without first paying compensation, an equitable remedy is immediately available as per Brown.

The court also emphatically holds that "‘damaged’ does not mean the same thing as ‘taken’ in ordinary phraseology," Brown, 5 Wn. at 40, and therefore deserves a more expansive interpretation.

Justice Theodore Stiles (1848-1925), author of the opinion, was a delegate to the Washington State Constitutional Convention in 1889 and played a leading role at the convention, chairing the Committee on County, Township, and Municipal Organizations and serving on the Rules, Judiciary, and Public Lands Committee as well. Charles H. Sheldon, The Washington High Bench (WSU Press 1992) 326-28. Stiles was nominated to the state supreme court by the Republican Party and, with his four Republican brethren, thrashed the democratic opposition in October 1889 balloting. According to Professor Sheldon: "Judge Stiles developed a reputation as a scholar as the state’s leading authority on the Washington Constitution." Brown, 5 Wn. at 40.

Future litigation on this point will no doubt pit Judge Stiles’ views against subsequent precedent which, unlike Justice Stiles, seems to find little or no distinction between takings and damaging.

This constitutional clause assumes that the property is about to be taken or damaged for a legitimate public purpose. If it is not public then the power to take or damage may not be exercised with or without compensation, or at least arguably so.

Brown seems to serve as a good example of the importance of paying compensation before, not after, the taking or damaging occurs and provides a basis for injunctive relief.

At this point some observations from the excellent student paper prepared by Tracy Douglas Forsythe "Inverse Condemnation—A Non Sequitur in Washington?" become most appropriate. According to Forsythe the phrase "without just compensation having first been made" . . . "would seem to imply an affirmative act that seems inconsistent with inverse condemnation. Inverse condemnation or taking by regulation without prior compensation is based upon the premise that the government is not affirmatively exercising its eminent domain power, that in fact the government has regulated to the extent that a de facto taking has occurred. The requirement that compensation be first paid would imply that unless payment is made as a threshold, the power to take or damage does not exist. This is distinctly different from the language of the Fifth Amendment . . . ." Forsythe at 16. He argues because the Constitution requires up front compensation, so-called inverse condemnation would be an ultra virus act regardless of whether compensation was later required or offered. Forsythe at 21. Although no precedent is cited for the proposition it is difficult to argue with this logic.

The implications of this kind of argument not only defeat ripeness-type defenses but arguably clear the way for invalidation ab initio with a hefty award of compensatory damages—even if the governmental action was for a legitimate public use, yet taken without prior compensation.

Whether this argument finds any precedential support anywhere is beyond the present diligence of your undersigned to determine.

The legal implications, and natural consequences, of this phrase deserve further exploration. As previously noted, the Fifth Amendment to the United States Constitution provides ". . . nor shall private property be taken for public use without just compensation."

Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L. Ed. 2d 1554 (1960).

The Washington Constitution, however, would apparently make the question of whether or not the "contemplated use be really public" a judicial question without reference to any legislative declaration of purpose or, perhaps by inference, dispel any presumption that the use is or is not "really public" which might arise from the legislation itself.

Enforcement of this rule to its logical conclusion might have some unanticipated results.

First, it would be a "judicial question" whether or not the proposed governmental action was in substance an effort to take or damage for "public" benefit on the one hand or a legitimate exercise of the police power to prevent harmful activity on the other. The latter might be outside Article I, § 16, and not subject to either its prohibitions or its compensatory requirements.

The other side of the "public use" question is legitimacy in a broader sense. Compare Nollan v. California Coastal Comm’n., 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) (there must be a substantial nexus between the proposed private development and the asserted public purpose of the permit condition to avoid the prohibited taking).

Analyzing a taking by "balancing" the public burden unfairly shouldered by a private landowner against the benefit flowing to the public from the private imposition, as per Guimont I, seems to be at least arguably out of sync with the question posed by Article I, § 16, i.e., "whether the contemplated use be really public . . . ." If it is "really public" a taking or damaging is permitted if compensation is first paid; if it isn’t, the proposed governmental action is simply prohibited. Cf. John M. Groen and Richard M. Stephens, Takings Law, Lucas, and the Growth Management Act, 16 U. Puget Sound L. Rev. 1259, at 1281 (Spring 1993); William W. Wade, Ph.D., Economic Considerations of Regulatory Takings Reform: Judicial Precedent and Administrative Law vs. Legislative Intent, 8-4-95, BNA, 676.

This provision of Article I, § 16 is also consistent with federal case law which burdens the government to justify its actions under the takings clause. See Nollan, 483 U.S. at 834 n.3 and see Dolan v. City of Tigard, ____ U.S.____, 114 S. Ct. 2309, 2320 n.8, 129 L. Ed. 2d 304 (1994).

The legitimacy/public use side of the takings equation is perhaps the least understood yet most important issue in takings law. Our state constitution may provide an independent source for a definitive answer.