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In HTK Management, L.L.C. v. Seattle Popular Monorail Authority (Wash. 2005), the Washington State Supreme Court issued its first opinion in a takings case in the wake of the U.S. Supreme Court’s decision of Kelo v. City of New London, ___ U.S. ___, 125 S. Ct. 2655 (2005). By a 7-2 vote, however, the Washington Supreme Court declined an invitation to reinvigorate its own state constitution’s provision for the exercise of eminent domain. The court instead chose to uphold a local authority’s condemnation of private property belonging to the descendants of a late immigrant worker who had been displaced to a Japanese-American internment camp.

Although many internees lost all their possessions in the wake of President Franklin D. Roosevelt’s Executive Order 9066, immigrant railroad laborer Henry T. Kubota (“HTK”) found a loyal friend to manage his property and return it to him upon his release. After Kubota’s death in 1989, his descendants managed his property in a historic part of downtown Seattle under his namesake, HTK Management, L.L.C. HTK’s parcel was well-known for the Sinking Ship garage that was constructed and operated on the property.

In 2002, the local Seattle Monorail Authority (Monorail) identified HTK’s parcel as a potential monorail station site. HTK learned this from a local newspaper rather than direct contact from the agency, but he expressed willingness to collaborate with the Monorail so that Monorail could build a station on a portion of HTK’s parcel and HTK could realize Kobuta’s dream of redeveloping the remainder of the parcel. At some point during negotiation, the Monrail passed a resolution to acquire HTK’s entire parcel by condemnation.

At a subsequent trial court hearing on pubic use and necessity, Monorail conceded that the station’s footprint would occupy only one-quarter to onethird of the parcel. Monorail contended that condemnation of the remainder property was needed for construction staging and staff parking activities. While conceding the station and construction staging may be public uses, HTK countered that the temporary nature of the staging and parking did not justify a fee simple interest in the remainder property. At the hearing HTK also presented evidence that Monorail sought agency profit from the remainder property through its anticipated increase in value following station construction and a subsequent sale of the remainder property to developers. The trial court sided with Monorail, entering a judgment of public use and necessity. 

Unlike the federal constitution, the Washington Constitution’s provision for takings makes explicit that the exercise of eminent domain for public use is subject to judicial review. Under Article I, Sec. 6 of Washington’s Declaration of Rights:

Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any Legislative assertion that the use is public.

Under Washington State jurisprudence, for a proposed condemnation to be lawful, the condemning authority must prove that (1) the use is really public, (2) the public interest requires it, and (3) the property appropriated is necessary for that purpose.

Writing for the majority, Justice Barbara Madsen thrice denied any resemblance between the case at hand and Kelo. Madsen read over Art. I. Sec. 6’s plain provision that “the question [as to] whether the contemplated use be really public shall be a judicial question,” by saying that a legislative declaration of “public use” is nonetheless “entitled to great weight.” Madsen went on to contend that a local authority’s determination of “public necessity” for the exercise of eminent domain was a “legislative question” that was “conclusive in the absence of actual fraud or arbitrary and capricious conduct, as would constitute constructive fraud.” Madsen insisted that decisions as to the type and extent of property interest necessary to carry out the public purposes are legislative questions, thereby announcing “the rule” that “decisions as to the amount of property do be condemned are legislative questions, reviewed under the legislative standard for necessity.” With a final denial of any Kelo connection to the present case, Madsen cited the present case’s involvement with “one of the most fundamental public uses for which property can be condemned - public transportation” and affirmed the trial court’s finding of public use and necessity.

In dissent, newly-elected Justice Jim Johnson offered, if only in passing, the first published judicial opinion from a state court calling Kelo’s soundness into question. The focus of Johnson’s dissent, however, was upon the majority’s reluctance to give credence to the state constitution’s plain language or its previous enforcement in Washington case law. Johnson sharply criticized the majority’s interpretation of the tri-partite “public use” test. Johnson cited early cases from the Evergreen State holding that because municipal corporations have no inherent power of eminent domain that such exercise can only take place in accordance with express statutory authorization, and because statutes conferring such power are in derogation of the common right, they “must be strictly construed, both as to the extent of the power and as to the manner of its exercise.”

In unmistakable terms, Johnson asserted that it is “stupefying” to give “great weight” to legislative determinations of public use and necessity when the constitutional provision for takings explicitly states that the question of public use shall be a judicial question, “without regard to any Legislative assertion that the use is public.”

Johnson also contended that an inquiry into public necessity of a taking is a corollary judicial construct to the public use inquiry. Going beyond the majority’s conclusion that public necessity declarations are conclusive absent fraud or constructive fraud, Johnson cited case law for the proposition that a declaration of necessity is neither upheld where there is arbitrary or capricious conduct, manifest abuse of discretion, violation of law, improper motives, or collusion. Cases cited defined arbitrary and capricious conduct as “ willful and unreasoning action and taken without regard to the attending facts or circumstances.” Johnson concluded that the record established that Monorail’s action was arbitrary and capricious and based upon improper motives. Justice Richard Sanders joined the dissent.

Public opinion and even local media opinion sided strongly against the majority’s opinion in the case—which is now frequently referred to as “the Sinking Ship case.” As of this writing the court has another eminent domain decision pending that might offer further indication as to whether private property rights in the state will follow the Kelo trajectory. 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].