Montgomery County v. Soleimanzadeh

McDONALD, J.,

dissenting, in which ADKINS, J., joins.

I would affirm the decisions of the Court of Special Appeals, largely for the reasons set forth in its reported decision.1 See Soleimanzadeh v. Montgomery County, 208 Md.App. 107, 56 A.3d 349 (2012).

The State Constitution conditions the power of the State and of local governments to take private property for public use on the payment of “just compensation, as agreed upon between the parties, or awarded by a Jury....” Maryland Constitution, Article III, § 40.2 This Court has described how this provision is a constitutional guarantee of a jury determination — as opposed to a court determination — of just compensation in the absence of an agreement between the parties:

The jury is the tribunal, and sole tribunal, by whom the amount of compensation is to be determined____The [circuit court] has no power to increase or diminish the compen*403sation awarded by the jury. Its jurisdiction is confined to the confirmation or setting aside the inquisition, and, if set aside, of ordering a new inquisition.

Baltimore Belt Railroad Corp. v. Baltzell, 75 Md. 94, 105-06, 23 A. 74 (1891) (emphasis added). A leading authority on eminent domain in Maryland has elaborated on this constitutional right as follows:

... A jury trial in a condemnation case is guaranteed by article III, section 40, of the Maryland Constitution presumably for the purpose of ensuring that the “just compensation” contemplated by that section is in fact awarded to owners of condemned property. As a result, a condemnation case is always tried before a jury unless all parties to the suit agree in writing to submit the case for determination without a jury.... The upshot of this procedure for selecting the trier of fact is that the property owner, who is the constitutionally protected party, must have his property valued by a jury unless he can persuade the condemnor, the party from whom he is constitutionally protected, to agree to dispense with a jury.
It was undoubtedly contemplated by the framers of article III, section 40 that the best method for protecting the property owner was to entrust the final decision as to the value of condemned property to [a jury]....

Ghinger & Ghinger, A Contemporary Appraisal of Condemnation in Maryland, 30 Md. L.Rev. 301, 322-23 (1970) (emphasis in original; citation omitted); see also D. Friedman, The Maryland State Constitution: A Reference Guide (2006) at 123 (unlike other factual issues in condemnation cases, “just compensation is a jury issue”). The Maryland Rules for condemnation proceedings likewise reflect this understanding. See Maryland Rule 12-207 (condemnation actions “shall be tried by a jury” unless the parties agree in writing to submit to a court determination).3

*404In reversing the Court of Special Appeals, the Majority opinion holds that a government entity may have the amount of compensation to be paid for property taken by eminent domain determined without either an agreement of the parties as to the amount, or a determination by a jury. The County attorney candidly admitted to the Circuit Court, and to this Court at oral argument, that he could find no case law directly supporting such a holding — in other words, such a holding is unprecedented.4 The Majority opinion dilutes the guarantee of Article III, § 40, by revising it to interlinéate the word “opportunity” into the text of that provision and its implementing rule. Majority op. at pp. 387-88, 389-91, 393, 82 A.3d at 193-94, 195-96, 197.

A corollary of the Majority’s holding is that a circuit court may now grant a directed verdict, or judgment under Rule 2-519, if it believes that there is only one reasonable outcome based on the evidence adduced, thereby taking the determination of just compensation away from a jury at trial. At oral argument, counsel for the County initially denied that such a directed verdict would be possible on the issue of value in a condemnation case, but ultimately conceded that it followed from his argument. Counsel’s reticence was appropriate. Under this decision, the jury is no longer the “sole tribunal” *405for the determination of just compensation in eminent domain proceedings. The Majority opinion expresses a desire to discourage the use of summary judgment motions as to value in condemnation cases,5 but like the old saying about being a “little bit pregnant,” either the summary judgment rule applies or it does not. We may be making a sea change in the conduct of eminent domain proceedings. And we are doing it in a case without the benefit of an adversarial presentation.

This decision also renders the jury trial right provided in Article III, § 40 of the Maryland Constitution essentially duplicative of the civil jury trial right provided in Article 23 of the Declaration of Rights. Article 23 guarantees trial by jury on issues of fact in civil proceedings when the amount in controversy exceeds $15,000. Under the Majority opinion’s reading of Article III, § 40, the only additional right it guarantees beyond that of Article 23 is a jury determination in condemnation proceedings where compensation is likely to be less than $15,000, which is likely to be a rare occurrence. Under the Majority opinion, Article III, § 40, and presumably the other constitutional provisions that guarantee a jury determination of just compensation, becomes superfluous — a result contrary to the tenets of constitutional and statutory construction. Johnson v. Duke, 180 Md. 434, 440, 24 A.2d 304 (1942) (stating the “elementary rule of interpretation” that every clause of the Constitution should be given effect).

Finally, the Majority opinion appears based on the notion that a trial in these cases could only result in adoption of the County’s proposed amount of compensation. But the sanctions imposed did not restrict cross examination of the County’s witnesses and we do not know what, if any, facts an attorney for the Soleimanzadehs would have elicited from them. The Majority opinion discounts the significance of cross-examination — in particular, the ability of counsel to develop favorable evidence through an opposing witness.

*406However, any experienced litigator can recount numerous instances in which a party established facts critical to its position through effective cross-examination of an adverse witness. One could certainly imagine that, in an eminent domain case, a lawyer for a property owner might detect an error in the appraisal done by the government’s expert, obtain a concession and recomputation from the expert, and thereby prove a different value than what the government had offered. All that is needed is human error, an honest witness, and an astute lawyer. No other “affirmative evidence” would be necessary. This Court has previously endorsed cross-examination as “the greatest legal engine ever invented for the discovery of truth.”6 In the context of an eminent domain case, however, it appears that it is the little engine that couldn’t.

Judge ADKINS joins this opinion.

. I disagree with the Court of Special Appeals, and agree with the Majority opinion, that a juty view is not required in a quick-take proceeding, even if the property owner wishes to have one. See Majority op. at pp. 399-401, 82 A.3d at 200-02.

. Several other State constitutional provisions reiterate this protection as against specific government entities. See, e.g., Maryland Constitution, Article III, § 40A (quick-take by Baltimore City, Baltimore, Cecil, and Montgomery counties); Article III, § 40B (quick-take by State Roads Commission). By contrast, while the federal Constitution also guarantees that property will not be taken from public use without just compensation, it does not guarantee a jury determination of the amount.

. The requirement of a jury trial without the possibility of summary disposition as a prerequisite to the government's exercise of its sovereignty is not a foreign concept in our constitutions. In the criminal *404context, the government may not prosecute a case that threatens a significant deprivation of an individual’s liberty without either a jury trial or the individual's agreement — i.e., a plea agreement or agreement to a bench trial. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Kawamura v. State, 299 Md. 276, 473 A.2d 438 (1984).

. As the Majority opinion recounts, no lawyer appeared for the property owners and we do not have the benefit of whatever arguments would have been made opposing the County's unsupported argument.

It is evident that the County itself had some doubt about the validity of short-circuiting the constitutional right to a jury determination of just compensation in a condemnation proceeding. When it filed its initial summary judgment motion in this case, that motion was addressed to the issues of public purpose and necessity, the amount of the area taken, and the legality of the condemnation proceeding, but not the determination of just compensation. Indeed, in its motion, the County itself affirmed that "[i]n a condemnation case, a jury is responsible for determining the amount of just compensation." See Majority op. at p. 384 n. 4, 82 A.3d at 192 n. 4.

. See Majority op. at p. 397 n. 8, 82 A.3d at 199 n. 8.

. Myer v. State, 403 Md. 463, 477, 943 A.2d 615 (2008) (quoting 5 J.H. Wigmore, Evidence in Trials at Common Law § 1367 (3d ed.1940)).