Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 30, 2004
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124070
EDWARD HATHCOCK,
Defendant-Appellant.
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124071
AARON T. SPECK and
DONALD E. SPECK, individuals,
Defendants-Appellants.
COUNTY OF WAYNE,
Plaintiff-Appellee
v No. 124072
AUBINS SERVICE, INC., DAVID R. YORK,
Trustee, David R. York Revocable Living Trust,
Defendants-Appellants.
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124073
JEFFREY J. KOMISAR,
Defendant-Appellant.
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124074
ROBERT WARD and LELA WARD,
Defendants-Appellants,
and
HENRY Y. COOLEY,
Defendant.
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124075
MRS. JAMES GRIZZLE and
MICHAEL A. BALDWIN,
Defendant-Appellants,
and
RAMIE FAKHOURY,
Defendant.
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124076
STEPHANIE A. KOMISAR,
Defendant-Appellant.
2
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124077
THOMAS L. GOFF, NORMA GOFF,
MARK A. BAKER, JR., and
KATHLEEN A. BARKER,
Defendants-Appellants.
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124078
VINCENT FINAZZO,
Defendant-Appellant,
and
AUBREY L. GREGORY and
DULCINA GREGORY,
Defendants.
BEFORE THE ENTIRE BENCH
YOUNG, J.
We are presented again with a clash of two bedrock
principles of our legal tradition: the sacrosanct right of
individuals to dominion over their private property, on the
one hand and, on the other, the state’s authority to
condemn private property for the commonweal. In this case,
Wayne County would use the power of eminent domain to
condemn defendants’ real properties for the construction of
a 1,300-acre business and technology park. This proposed
3
commercial center is intended to reinvigorate the
struggling economy of southeastern Michigan by attracting
businesses, particularly those involved in developing new
technologies, to the area.
Defendants argue that this exercise of the power of
eminent domain is neither authorized by statute nor
permitted under article 10 of the 1963 Michigan
Constitution, which requires that any condemnation of
private property advance a “public use.” Both the Wayne
Circuit Court and the Court of Appeals rejected these
arguments—compelled, in no small measure, by this Court’s
opinion in Poletown Neighborhood Council v Detroit.1 We
granted leave in this case to consider the legality of the
proposed condemnations under MCL 213.23 and art 10, § 2 of
our 1963 Constitution.
We conclude that, although these condemnations are
authorized by MCL 213.23, they do not pass constitutional
muster under art 10, § 2 of our 1963 constitution. Section
2 permits the exercise of the power of eminent domain only
for a “public use.” In this case, Wayne County intends to
transfer the condemned properties to private parties in a
manner wholly inconsistent with the common understanding of
“public use” at the time our Constitution was ratified.
1
410 Mich 616; 304 NW2d 455 (1981).
4
Therefore, we reverse the judgment of the Court of Appeals
and remand the case to the Wayne Circuit Court for entry of
summary disposition in defendants’ favor.
FACTS AND PROCEDURAL HISTORY
In April 2001, plaintiff Wayne County initiated
actions to condemn nineteen parcels of land immediately
south of Metropolitan Airport. The owners of those
parcels, defendants in the present actions, maintain that
these condemnations lack statutory authorization and exceed
constitutional bounds.
This dispute has its roots in recent renovations of
Metropolitan Airport. The county’s $2 billion construction
program produced a new terminal and jet runway and,
consequently, raised concerns that noise from increased air
traffic would plague neighboring landowners. In an effort
to obviate such problems, the county, funded by a partial
grant of $21 million from the Federal Aviation
Administration (FAA), began a program of purchasing
neighboring properties through voluntary sales.
Eventually, the county purchased approximately five hundred
acres in nonadjacent plots scattered in a checkerboard
pattern throughout an area south of Metropolitan Airport.
Wayne County’s agreement with the FAA provided that any
properties acquired through the noise abatement program
were to be put to economically productive use. In order to
5
fulfill this mandate, the county, through its Jobs and
Economic Development Department, developed the idea of
constructing a large business and technology park with a
conference center, hotel accommodations, and a recreational
facility. Thus, the “Pinnacle Project” was born.
The Pinnacle Project calls for the construction of a
state-of-the-art business and technology park in a 1,300-
acre area adjacent to Metropolitan Airport. The county
avers that the Pinnacle Project will
create thousands of jobs, and tens of millions of
dollars in tax revenue, while broadening the
County’s tax base from predominantly industrial
to a mixture of industrial, service and
technology. The Pinnacle Project will enhance
the image of the County in the development
community, aiding in its transformation from a
high industrial area, to that of an arena ready
to meet the needs of the 21st century. This
cutting-edge development will attract national
and international businesses, leading to
accelerated economic growth and revenue
enhancement.
According to expert testimony at trial, it is anticipated
that the Pinnacle Project will create thirty thousand jobs
and add $350 million in tax revenue for the county.
The county planned to construct the business and
technology park in a 1,300-acre area that included the five
hundred acres purchased under the federally funded noise
abatement program. Because the county needed to acquire
more land within the project area, it began anew to solicit
voluntary sales from area landowners. This round of sales
6
negotiations enabled the county to purchase an additional
five hundred acres within the project area.
Having acquired over one thousand acres, the county
determined that an additional forty-six parcels distributed
in a checkerboard fashion throughout the project area were
needed for the business and technology park. The county
apparently determined that further efforts to negotiate
additional voluntary sales would be futile and decided
instead to invoke the power of eminent domain. Thus, on
July 12, 2000, the Wayne County Commission adopted a
Resolution of Necessity and Declaration of Taking
(Resolution of Necessity) authorizing the acquisition of
the remaining three hundred acres needed for the Pinnacle
Project.
The remaining properties were appraised as required by
the Uniform Condemnation Procedures Act (UCPA),2 and the
county issued written offers based on these appraisals to
the property owners. Twenty-seven more property owners
accepted these offers and sold their parcels to the county.
But according to the county’s estimates, nineteen
additional parcels were still needed for the Pinnacle
Project. These properties, owned by defendants, are the
subject of the present condemnation actions.
2
MCL 213.51 et seq.
7
In late April 2001, plaintiff initiated condemnation
actions under the UCPA. In response, each property owner
filed a motion to review the necessity of the proposed
condemnations.3 They argued, first, that the county lacked
statutory authority to exercise the power of eminent domain
in this manner. Second, defendants contended that
acquisition of the subject properties was not necessary as
required by statute. Finally, they challenged the
constitutionality of these condemnation actions,
maintaining that the Pinnacle Project would not serve a
public purpose.
An evidentiary hearing on the consolidated cases was
held over four weeks in the Wayne Circuit Court. On
December 19, 2001, the trial court affirmed the county’s
determination of necessity. The court held that the
takings were authorized by MCL 213.23, that the county did
not abuse its discretion in determining that condemnation
was necessary, and that the Pinnacle Project served a
public purpose as defined by Poletown. The trial court
denied defendants’ motions for reconsideration on January
24, 2002.
Defendants appealed the matter to the Court of
Appeals, which granted leave on April 24, 2003. The Court
3
See MCL 213.56.
8
of Appeals affirmed the trial court’s decision.4 The panel
concluded that the proposed condemnations passed statutory
and constitutional muster under MCL 213.21 et seq. and our
Poletown decision. Judge MURRAY, joined by Judge FITZGERALD,
concurred with Presiding Judge O’CONNELL, but opined that
Poletown was poorly reasoned, wrongly decided, and ripe for
reversal by this Court.5
We granted defendants’ applications for leave to
appeal on November 17, 2003.6 Our grant order directed the
parties to the following issues:
(1) whether plaintiff has the authority,
pursuant to MCL 213.23 or otherwise, to take
defendants’ properties; (2) whether the proposed
taking, which are at least partly intended to
result in later transfers to private entities,
are for a “public purpose,” pursuant to Poletown
Neighborhood Council v Detroit, 410 Mich 616
(1981); and (3) whether the “public purpose” test
set forth in Poletown, supra, is consistent with
Const 1963, art 10, § 2 and, if not, whether this
test should be overruled. Further, the parties
should discuss whether a decision overruling
Poletown, supra, should apply retroactively or
prospectively only, taking into consideration the
reasoning in Pohutski v City of Allen Park, 465
Mich 675 (2002).
We also solicited briefs amicus curiae.
STANDARD OF REVIEW
4
Unpublished opinion per curiam, issued April 24, 2003
(Docket Nos. 239438, 239563, 240187, 240189, 240190,
240193-420195).
5
Slip op at 5-6 (MURRAY, J, concurring).
6
469 Mich 952 (2003).
9
Statutory construction is a question of law subject to
review de novo.7 In the eminent domain context, the UCPA
limits our review of a public agency’s determination that a
condemnation is necessary. We may vacate an agency’s
finding that a condemnation serves a public necessity only
if a party establishes that the finding is predicated on
“fraud, error of law, or abuse of discretion.”8
Constitutional issues, like questions of statutory
construction, are subject to review de novo.9
ANALYSIS
A. MCL 213.23
Defendants, the property owners whose lands Wayne
County now seeks to condemn, assert that the proposed
takings exceed the county’s statutory and constitutional
authority. If it were correct that the county lacks
statutory authorization to condemn defendants’ properties,
this Court need not—and must not, under well-established
prudential principles—determine whether the takings also
violate our Constitution.10 We begin, therefore, with the
7
Morales v Auto-Owners Ins Co (After Remand), 469 Mich
487, 490; 672 NW2d 849 (2003).
8
MCL 213.56(2).
9
People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004).
10
Federated Publications, Inc v Michigan State Univ Bd
of Trustees, 460 Mich 75, 93; 594 NW2d 491 (1999) (CAVANAGH,
10
county’s contention that MCL 213.23 authorizes the proposed
condemnations.
MCL 213.23 provides:
Any public corporation or state agency is
authorized to take private property necessary for
a public improvement or for the purposes of its
incorporation or for public purposes within the
scope of its powers for the use or benefit of the
public and to institute and prosecute proceedings
for that purpose. When funds have been
appropriated by the legislature to a state agency
or division thereof or the office of the governor
or a division thereof for the purpose of
acquiring lands or property for a designated
public purpose, such unit to which the
appropriation has been made is authorized on
behalf of the people of the state of Michigan to
acquire the lands or property either by purchase,
condemnation or otherwise. For the purpose of
condemnation the unit may proceed under the
provisions of this act.
In interpreting this statutory language, this Court’s
primary goal is to give effect to the Legislature’s
intent.11 If the Legislature has clearly expressed its
intent in the language of a statute, that statute must be
enforced as written, free of any “contrary judicial
gloss.”12
J., concurring in part and dissenting in part) (noting a
“longstanding rule [that] requires us to consider
constitutional questions only as a last resort, and to
avoid such questions where a nonconstitutional basis exists
for resolving the matter”).
11
Morales, supra at 490.
12
Id.
11
Wayne County is a “public corporation” as the term is
used in this statute,13 and is therefore subject to the
provisions of this section. Under MCL 213.23, a
condemnation must be “necessary” for one of three ends: “a
public improvement or for the purposes [to be advanced by
the public corporation or state agency’s] incorporation or
for public purposes within the scope of [the corporation’s
or agency’s] powers. . . .” Additionally, a proposed
condemnation must be “for the use or benefit of the public.
. . .”14
Plaintiff does not argue that the takings at issue are
a “public improvement” or that they advance purposes of the
county’s incorporation. Consequently, this Court must
determine only whether the proposed condemnations are
necessary for public purposes, whether those purposes are
within the scope of the county’s powers, and whether the
takings are “for the use or benefit of the public . . . .”15
1. “FOR PUBLIC PURPOSES WITHIN THE SCOPE OF ITS POWERS”
13
Const 1963, art 7, § 1 (“Each organized county shall
be a body corporate with powers and immunities provided by
law.”); MCL 213.21 (“The term ‘public corporations’ as
herein used shall include all counties, cities, villages,
boards, commissions and agencies made corporations for the
management and control of public business and property
. . ..”).
14
Id.
15
MCL 213.23
12
Wayne County’s assertion that the proposed
condemnations are “for public purposes within the scope of
its powers”16 raises two discrete questions—first, whether
Wayne County is authorized to exercise the power of eminent
domain at all and, second, whether this particular exercise
of the eminent domain power is within the county’s powers.
There is no question that the state possesses the
power of eminent domain.17 The state’s authority to condemn
private property for public use is preserved by our
Constitution18 and has been expressly acknowledged by this
Court on a number of occasions.19 But whether that eminent
domain power extends to counties within the state is
another matter.
Plaintiff argues that the Legislature has expressly
conferred that power upon public corporations such as Wayne
County through the plain language of MCL 213.23. This
statute begins by stating that “[a]ny public corporation or
state agency is authorized to take private property
16
Id.
17
Peterman v Dep’t of Natural Resources, 446 Mich 177,
185; 521 NW2d 499 (1994) (“[E]ach State by virtue of its
statehood has the right to exercise the power of eminent
domain.”), quoting Loomis v Hartz, 165 Mich 662, 665; 131
NW 85 (1911).
18
Const 1963, art 10, § 2.
19
See, for example, Peterman, supra at 185-186,
quoting People ex rel Trombley v Humphrey, 23 Mich 471, 474
(1871).
13
. . . .”20 Plaintiff argues that this language is a
separate and independent delegation of the power to condemn
private property for public purposes. Because § 23
“authoriz[es]” public corporations to condemn property in
certain circumstances, a public corporation need not rely
on any other statutory provision in order to exercise the
power of eminent domain.
Defendants maintain, however, that plaintiff’s reading
renders the second sentence of MCL 213.23 a nullity. This
sentence provides:
When funds have been appropriated by the
legislature to a state agency or division thereof
or the office of the governor or a division
thereof for the purpose of acquiring lands or
property for a designated public purpose, such
unit to which the appropriation has been made is
authorized on behalf of the people of the state
of Michigan to acquire the lands or property
either by purchase, condemnation or otherwise.[21]
If the first sentence of MCL 213.23 is a separate grant of
authority to condemn, defendants argue, the second
sentence—which also confers the authorization to condemn
land—is redundant.
A careful reading of MCL 213.23 reveals that this
statute is indeed a separate grant of authority and, thus,
that plaintiff has parsed this statute correctly. The
20
MCL 213.23 (emphasis added).
21
Id.
14
first sentence of MCL 213.23 states that a public
corporation such as Wayne County “is authorized” to condemn
private property if the other preconditions of § 23 are
met. To “authorize” is to “to give the authority or
official power to” or “to empower.”22 By its plain
language, this first sentence is an affirmative grant of
eminent domain power to public corporations and state
agencies.
Contrary to defendants’ arguments, giving effect to
the plain language of the first sentence does not render
the remainder of § 23 nugatory. The second sentence
applies only to condemnation by the state, its agencies or
their divisions; thus, it applies to a subset of the groups
covered by the first sentence. Further, it establishes a
precondition to the condemnation for a public purpose
designated by the Legislature—namely, the appropriation of
funds to the state agency or division for that purpose.
Finally, the second sentence, unlike the first, authorizes
specific methods of exercising the power of eminent domain.
Accordingly, the second sentence of MCL 213.23 does not
alter the plain meaning of the first: Wayne County, as a
public corporation, is authorized by MCL 213.23 to condemn
22
Random House Webster’s Unabridged Dictionary (2nd
ed, 2001).
15
property, albeit subject to other constitutional and
statutory limitations.
The second question raised by the county’s reliance on
the “for public purposes within the scope of its powers”
phrase in § 23 is whether these particular condemnations
are “within the scope of [Wayne County’s] powers.” The
power upon which plaintiff relies—the authority to condemn
“for public purposes within the scope of its powers”—calls
for an analysis of the scope of Wayne County’s “powers,”
and an assessment of whether the proposed condemnations are
within those powers.
Art 7, § 1 of our 1963 Constitution provides that
“[e]ach organized county shall be a body corporate with
powers and immunities provided by law.” The Constitution
also declares that a county may codify in its charter the
power “to adopt resolutions and ordinances relating to its
concerns.”23 These constitutional provisions are to be
“liberally construed”:
The provisions of this constitution and law
concerning counties, townships, cities and
villages shall be liberally construed in their
favor. Powers granted to counties and townships
by this constitution and by law shall include
those fairly implied and not prohibited by this
constitution.[24]
23
Const 1963, art 7, § 2.
24
Const 1963, art 7, § 34.
16
Given the broad authority conferred by the
Constitution upon local governments, this Court has
acknowledged that Michigan “is a home rule state,” in which
“local governments are vested with general constitutional
authority to act on all matters of local concern not
forbidden by state law.”25 The Legislature has also
recognized that the Michigan constitution establishes a
system of home rule. The charter county act,26 enacted in
1966, states that county charters may expressly provide for
[t]he authority to perform at the county level
any function or service not prohibited by law,
which shall include, by way of enumeration and
not limitation: Police protection, fire
protection, planning, zoning, education, health,
welfare, recreation, water, sewer, waste
disposal, transportation, abatement of air and
water pollution, civil defense, and any other
function or service necessary or beneficial to
the public health, safety, and general welfare of
the county.[27]
Plaintiff Wayne County has claimed all the authority
granted by these constitutional and statutory provisions.
Its charter states:
Wayne County, a body corporate, possesses
home rule power enabling it to provide for any
matter of County concern and all powers conferred
by the constitution or law upon charter counties
25
Airlines Parking v Wayne Co, 452 Mich 527, 537 n 18;
550 NW2d 490 (1996).
26
MCL 45.501 et seq.
27
MCL 45.515(c) (emphasis added).
17
or upon general law counties, their officers, or
agencies.[28]
With this charter provision, Wayne County has claimed for
itself the power to act in all matters not specifically
reserved by statute or constitution to the state. The
county’s “powers” include the authority to pursue any end
that is “necessary or beneficial to the public health,
safety, and general welfare” of the county,29 assuming that
the pursuit of that objective is not reserved by our
Constitution or by statute to the state.
In this case, Wayne County has condemned the
defendants’ real properties for the following purposes:
“(1) the creation of jobs for its citizens, (2) the
stimulation of private investment and redevelopment in the
county to insure a healthy and growing tax base so that the
county can fund and deliver critical public services, (3)
stemming the tide of disinvestment and population loss, and
(4) supporting development opportunities which would
otherwise remain unrealized.”30 The analysis provided in
this opinion demonstrates that, unless the pursuit of one
or more of these objectives has been assigned to the state
by law, any condemnation in furtherance of these goals is
28
Wayne County Charter, § 1.112.
29
See MCL 45.515(c) (emphasis added).
30
Quoted from complaint for condemnation.
18
“within the scope of Wayne County’s powers,” as required by
MCL 213.23. Defendants have adduced no constitutional or
statutory support for the proposition that a home rule
county such as Wayne County may not pursue these
objectives. Accordingly, the proposed condemnations are—
at least for statutory purposes—within the scope of Wayne
County’s powers.
The pursuit of the goals cited above is within the
scope of Wayne County’s powers, and each goal certainly
advances a “public purpose.” A “public purpose” has been
defined as that which “’has for its objective the promotion
of the public health, safety, morals, general welfare,
security, prosperity, and contentment of all the
inhabitants or residents within the municipal corporation,
the sovereign powers of which are used to promote such
public purpose.’”31 A transition from a declining rustbelt
economy to a growing, technology-driven economy would, no
doubt, promote prosperity and general welfare.
Consequently, the county’s goal of drawing commerce to
metropolitan Detroit and its environs by converting the
subject properties to a state-of-the-art technology and
31
Gaylord v Gaylord City Clerk, 378 Mich 273, 300; 144
NW2d 460 (1966), quoting Hays v Kalamazoo, 316 Mich 443,
454; 25 NW2d 787 (1947), quoting 37 Am Jur, Municipal
Corporations, § 120, p 734.
19
business park is within this definition of a “public
purpose.”
That is not to say, of course, that the exercise of
eminent domain in this case passes constitutional muster.
While the proposed condemnations satisfy the broad
parameters established by MCL 213.23, it must also be
determined whether these condemnations pass the more narrow
requirements of our Constitution. We address this question
later.
2. “NECESSARY”
For a public corporation to condemn property under MCL
213.23, a proposed taking must not only advance one of the
three objectives listed in that statute, but it must also
be “necessary” to that end. The Legislature has vested the
authority to determine the necessity required under MCL
213.23 in those entities authorized to condemn private
property under that statute.32 Accordingly, Michigan’s
courts are bound by a public corporation’s determination
that a proposed condemnation serves a public necessity
32
MCL 213.56(2) (“With respect to an acquisition by a
public agency, the determination of public necessity by
that agency is binding on the court in the absence of a
showing of fraud, error of law, or abuse of discretion.”).
20
unless the party opposing the condemnation demonstrates
“fraud, error of law, or abuse of discretion.”33
Defendants advance three basic arguments for the
proposition that plaintiff has failed to establish that the
takings are “necessary” as required by MCL 213.23 and
therefore abused its discretion in condemning the subject
properties. They contend, first, that the county has
neither identified specific private purchasers for each of
the defendants’ parcels nor demonstrated that the parcels
will be put to productive use now or in the immediate
future. Thus, defendants argue that Wayne County is
impermissibly using the power of eminent domain to
“stockpile” land for speculative future use, a practice
expressly prohibited fifty years ago in Grand Rapids Bd of
Ed v Baczewski.34
We disagree. The proposed condemnations are quite
unlike the exercise of eminent domain prohibited in
Baczewski. There, a local board of education attempted to
condemn property near a high school because it surmised
that the high school would need to expand in approximately
33
Id. See also Detroit v Lucas, 180 Mich App 47, 53;
446 NW2d 596 (1989).
34
Grand Rapids Bd of Ed v Baczewski, 340 Mich 265,
272; 65 NW2d 810 (1954).
21
thirty years. The affected landowner challenged the
condemnation under the 1908 Constitution,35 which—in
contrast to the 1963 Constitution36—expressly required any
exercise of eminent domain to be “necessary.” This Court
held that a condemnation is “necessary” only if the
condemned property will be used “immediately” or “within a
period of time that the jury determines to be the ‘near
future’ or a ‘reasonably immediate use.’”37 The speculative
need for property in thirty years time lacked any of the
urgency of a “necessary” condemnation.
Even if we grant, arguendo, that the definition of
“necessity” under the 1908 Constitution applies to MCL
213.23 as well, the present case is nevertheless
distinguishable from Baczewski. Whereas the school board
in Baczewski admitted that it would not need the
defendant’s property for thirty years after its
condemnation, plaintiff has a definite plan for defendants’
properties and intends to construct a business and
35
Const 1908, art 13, § 1 (“Private property shall not
be taken by the public nor by any corporation for public
use, without the necessity therefor being first determined
and just compensation therefor being first made or secured
in such manner as shall be prescribed by law.”).
36
Const 1963, art 10, § 2 (“Private property shall not
be taken for public use without just compensation therefor
being first made or secured in a manner prescribed by law.
Compensation shall be determined in proceedings in a court
of record.”).
37
Baczewski, supra at 272.
22
technology park as soon as possible. According to the
trial court’s summary of testimony at trial, the
acquisition of defendants’ properties would also enable the
county to achieve a “critical mass of property,” and would
thereby facilitate investment in the project. Baczewski
does not bar an exercise of the power of eminent domain
simply because the ultimate owner of the condemned land has
yet to be identified.
Second, defendants argue that the proposed
condemnations are not “necessary” under MCL 213.23 because
plaintiff must still clear a number of procedural hurdles
in order to proceed with the Pinnacle Project. These
include the need for a special exclusion from the FAA in
order to use land acquired through the noise abatement
program for the Pinnacle Project, environmental concerns
that may arise if construction of the project disturbs
extant wildlife habitats, and the creation of local
district finance authority and tax increment finance plan
under the Local Development Financing Act.38
This argument is unpersuasive. MCL 213.23 requires a
proposed condemnation to be “necessary” to advance one of
the specified purposes. It does not, however, require that
the condemning authority clear all other statutory and
38
MCL 125.2151 et seq.
23
procedural hurdles before commencing condemnation
proceedings. In arguing that the plaintiff has failed to
demonstrate necessity, defendants have essentially read new
requirements into MCL 213.23.
Finally, defendants assert, without supporting
argument, that plaintiff has failed to establish that “the
[business and technology] park is necessary for the
public.” Given defendants’ failure to brief the issue,
this Court may consider it abandoned.39 In any event, the
argument erroneously shifts the burden of proof to
plaintiff when the party opposing condemnation bears the
burden of proving fraud, error of law, or abuse of
discretion by the condemning authority.40
3. “FOR THE USE OR BENEFIT OF THE PUBLIC”
A condemnation that is necessary for a public purpose
within the scope of the condemning authority’s powers must
also be “for the use or benefit of the public” in order to
be valid under MCL 213.23. There is ample evidence in the
record that the Pinnacle Project would benefit the public.
The development is projected to bring jobs to the
struggling local economy, add to tax revenues and thereby
increase the resources available for public services, and
39
Gross v Gen Motors Corp, 448 Mich 147, 162 n 8; 528
NW2d 707 (1995).
40
See n 14, supra, and accompanying text.
24
attract investors and businesses to the area, thereby
reinvigorating the local economy.
In fact, defendants do not dispute that the proposed
condemnations would benefit the public. Instead, relying
on City of Lansing v Edward Rose Realty, Inc,41 defendants
argue that the benefits that private parties will receive
through the Pinnacle Project outweigh any benefits that the
general public is likely to receive and, therefore, that
plaintiff has failed to establish a “public use or
benefit.”
The two Edward Rose passages on which defendants rely,
however, concern issues quite distinct from those under
consideration here. The Edward Rose Court first engaged in
a balancing of public and private interests in addressing
whether a city ordinance authorizing the condemnation of
private property was a legitimate exercise of the general
authority conferred upon Lansing as a home rule city.42 The
Court then returned to the balancing of public and private
interests when evaluating the city’s ordinance under the
“heightened scrutiny” test of Poletown.43 Neither passage
concerns the meaning of the phrase “public benefit,” much
41
City of Lansing v Edward Rose Realty, Inc, 442 Mich
626; 502 NW2d 638 (1993).
42
Id. at 634-635
43
Poletown, supra at 634-635.
25
less the meaning of “public benefit” as used in MCL 213.23.
Moreover, Edward Rose nowhere suggests that the “public use
or benefit” element of MCL 213.23 requires a balancing of
public and private benefits, or that public benefits must
predominate over private ones under this statute. As such,
defendants have failed to persuade us that the proposed
condemnations will fail to provide a “public benefit”
within the meaning of MCL 213.23.
On the basis of the foregoing analysis, we conclude
that the condemnations sought by Wayne County are
consistent with MCL 213.23 and that this statute is a
separate and independent grant of eminent domain authority
to public corporations such as Wayne County. If the
authority to condemn private property conferred by the
Legislature lacked any constitutional limits, this Court
would be compelled to affirm the decisions of the circuit
court and the Court of Appeals. But our state Constitution
does, in fact, limit the state’s power of eminent domain.
Therefore, it must be determined whether the proposed
condemnations pass constitutional muster.
B. ART 10, § 2
Art 10, § 2 of Michigan’s 1963 Constitution provides
that “[p]rivate property shall not be taken for public use
without just compensation therefor being first made or
secured in a manner prescribed by law.” Plaintiffs contend
26
that the proposed condemnations are not “for public use,”
and therefore are not within constitutional bounds.
Accordingly, our analysis must now focus on the “public
use” requirement of Art 10, § 2.
1. “Public Use” as a Legal Term of Art
The primary objective in interpreting a constitutional
provision is to determine the text’s original meaning to
the ratifiers, the people, at the time of ratification.44
This rule of “common understanding” has been described by
Justice COOLEY in this way:
"A constitution is made for the people and
by the people. The interpretation that should be
given it is that which reasonable minds, the
great mass of the people themselves, would give
it. 'For as the Constitution does not derive its
force from the convention which framed, but from
the people who ratified it, the intent to be
arrived at is that of the people, and it is not
to be supposed that they have looked for any dark
or abstruse meaning in the words employed, but
rather that they have accepted them in the sense
most obvious to the common understanding, and
ratified the instrument in the belief that that
was the sense designed to be conveyed.'”[45]
In short, the primary objective of constitutional
interpretation is to realize the intent of the people by
whom and for whom the constitution was ratified.
44
Nutt, supra at 573.
45
Traverse City School Dist v Attorney General, 384
Mich 390, 405; 185 NW2d 9 (1971) (emphasis in original),
quoting COOLEY's Constitutional Limitations 81.
27
This Court typically discerns the common understanding
of constitutional text by applying each term’s plain
meaning at the time of ratification.46 But if the
constitution employs technical or legal terms of art, “we
are to construe those words in their technical, legal
sense.”47 Justice COOLEY has justified this principle of
constitutional interpretation in this way:
[I]t must not be forgotten, in construing
our constitutions, that in many particulars they
are but the legitimate successors of the great
charters of English liberty, whose provisions
declaratory of the rights of the subject have
acquired a well-understood meaning, which the
people must be supposed to have had in view in
adopting them. We cannot understand these
provisions unless we understand their history,
and when we find them expressed in technical
words, and words of art, we must suppose these
words to be employed in their technical sense.
When the law speaks of an ex post facto law, it
means a law technically known by that
designation; the meaning of the phrase having
become defined in the history of constitutional
law, and being so familiar to the people that it
is not necessary to employ language of a more
popular character to designate it. The technical
sense in these cases is the sense popularly
understood, because that is the sense fixed upon
the words in legal and constitutional history
where they have been employed for the protection
of popular rights.[48]
46
Silver Creek, supra at 375.
47
Id.
48
1 Cooley, Constitutional Limitations (8th ed), p
130-133. See also in In re Payne, 444 Mich 679, 707 n 6;
512 NW2d 121 (1994) (RILEY, J., concurring in part and
dissenting in part) (quoting a portion of this passage).
28
Justice COOLEY recognized, as demonstrated by the
passage cited above, that, in ratifying a constitution, the
people may understand that certain terms used in that
document have a technical meaning within the law.
Therefore, the people may ratify a constitution with the
understanding that it incorporates legal terms of art—or,
in Justice COOLEY’s terms, words “employed in their technical
sense.” Cooley, supra at 132.
When one actually engages in the mode of analysis
described by Justice COOLEY and quoted by Justice WEAVER, one
need look no farther than the COOLEY treatise upon which the
concurrence relies to see that “public use” is indeed a
term of art. See Cooley, Constitutional Limitations (5th
ed, 1998), p 657-666. After surveying some of the many
judicial opinions wrestling with this concept, Justice COOLEY
concludes: “But accepting as correct the decisions which
have been made, it must be conceded that the term ‘public
use’ as employed in the law of eminent domain, has a
meaning much controlled by the necessity, and somewhat
different from that which it bears generally.” Cooley,
Constitutional Limitations (5th ed, 1998), p 664-665
(emphasis added). See also id. at 659 (“We find ourselves
somewhat at sea, however, when we undertake to define in
the light of the judicial decisions, what constitutes a
public use.”).
Thus, the notion that the meaning of “public use” was
“commonly understood by the people, learned and unlearned,
who ratified the constitution,” post at 22, is one that
would have been quite foreign to Justice COOLEY. In fact,
this eminent jurist admitted to being “somewhat at sea” in
attempting to cull a single definition of “public use” from
the complex case law on the power of eminent domain.
Cooley, supra at 659. This admission from our patron saint
of constitutional interpretation stands in stark contrast
to fictionalized “common understanding” proffered by the
concurring opinion.
Frankly, we are hard pressed to understand what
differentiates Justice WEAVER’s construction from our own.
Justice WEAVER herself acknowledges that “public use” must be
read as a technical term. See post at 20-21. Justice
WEAVER’s recognition that “public use” must be read in light
of its “legal and constitutional history” is precisely our
point.
29
Thus, in Silver Creek, for example, we determined that the
phrase “just compensation” was a legal term of art of
enormous complexity, and that its meaning could be
discerned only by canvassing legal precedent on “just
compensation” before 1963 to determine how an individual
versed in the law before the Constitution’s ratification
would understand that concept.49 Indeed, we have held that
the whole of art 10, § 2 has a technical meaning that must
be discerned by examining the “purpose and history” of the
power of eminent domain.50
“Public use” is a legal term of art every bit as
complex as “just compensation.” It has reappeared as a
positive limit on the state’s power of eminent domain in
Michigan’s constitutions of 1850,51 1908,52 and 1963,53 and
If there is any meaningful difference between reading
a constitutional term according to its legal history
because the ratifiers understood that the term was one with
a technical meaning (our position) or because the ratifiers
themselves were familiar with that legal history (Justice
WEAVER’s position) it is one we find difficult to discern.
Under either Justice Weaver’s locution or ours, “public
use” is read according to its “legal and constitutional
history.” Thus, it cannot be the case that our test leads
more easily to “elitist” abuse than the hers, since Justice
Weaver’s “common understanding” approach is
indistinguishable in result from our own.
49
Silver Creek, supra at 376.
50
Peterman, supra at 186-187.
51
See Const 1850, art 15, § 9. (“The property of no
person shall be taken by any corporation for public use,
30
each invocation of “public use” has been followed by
litigation over the precise contours of this language.
Consequently, this Court has weighed in repeatedly on the
meaning of this legal term of art. We can uncover the
common understanding of art 10, § 2 only by delving into
this body of case law, and thereby determining the “common
understanding” among those sophisticated in the law at the
time of the Constitution’s ratification.
This case does not require that this Court cobble
together a single, comprehensive definition of “public use”
from our pre-1963 precedent and other relevant sources.
The question presented here is a fairly discrete one: are
the condemnation of defendants’ properties and the
subsequent transfer of those properties to private entities
pursuant to the Pinnacle Project consistent with the common
understanding of “public use” at ratification? For the
reasons stated below, we answer that question in the
negative.
2. “PUBLIC USE” AND PRIVATE OWNERSHIP
When our Constitution was ratified in 1963, it was
well-established in this Court’s eminent domain
without compensation being first made or secured, in such
manner as may be prescribed by law.”).
52
See note 35.
53
See note 36.
31
jurisprudence that the constitutional “public use”
requirement was not an absolute bar against the transfer of
condemned property to private entities.54 It was equally
clear, however, that the constitutional “public use”
requirement worked to prohibit the state from transferring
condemned property to private entities for a private use.55
Thus, this Court’s eminent domain jurisprudence—at least
that portion concerning the reasons for which the state may
condemn private property—has focused largely on the area
between these poles.
Justice RYAN’s Poletown dissent accurately describes
the factors that distinguish takings in the former category
from those in the latter according to our pre-1963 eminent
domain jurisprudence.56 Accordingly, we conclude that the
transfer of condemned property is a “public use” when it
possess one of the three characteristics in our pre-1963
case law identified by Justice RYAN.
54
This fact is also noted by Justice RYAN in his
Poletown dissent. Poletown, supra at 670.
55
See, e.g., Bd of Health of Portage Twp v Van Hoesen,
87 Mich 533; 49 NW 894 (1891) (dismissing a petition
seeking the condemnation of private property for use as a
cemetery).
56
Poletown, supra at 674-681. Although Justice RYAN
viewed these common elements as “exceptions” to the general
rule against condemnations for private use, the three
exceptions reflect concepts that are incorporated into the
definition of “public use,” given the principles of
constitutional interpretation articulated above.
32
First, condemnations in which private land was
constitutionally transferred by the condemning authority to
a private entity involved “public necessity of the extreme
sort otherwise impracticable.”57 The “necessity” that
Justice RYAN identified in our pre-1963 case law is a
specific kind of need:
[T]he exercise of eminent domain for private
corporations has been limited to those
enterprises generating public benefits whose very
existence depends on the use of land that can be
assembled only by the coordination central
[58]
government alone is capable of achieving.
Justice Ryan listed “highways, railroads, canals, and other
instrumentalities of commerce” as examples of this brand of
necessity.59 A corporation constructing a railroad, for
example, must lay track so that it forms a more or less
straight path from point A to point B. If a property owner
between points A and B holds out—say, for example, by
refusing to sell his land for any amount less than fifty
times its appraised value—the construction of the railroad
is halted unless and until the railroad accedes to the
property owner’s demands. And if owners of adjoining
properties receive word of the original property owner’s
windfall, they too will refuse to sell.
57
Id. at 675 (RYAN, J., dissenting).
58
Id. at 676 (emphasis in original).
59
Id. at 675.
33
The likelihood that property owners will engage in
this tactic makes the acquisition of property for
railroads, gas lines, highways, and other such
“instrumentalities of commerce” a logistical and practical
nightmare. Accordingly, this Court has held that the
exercise of eminent domain in such cases—in which
collective action is needed to acquire land for vital
instrumentalities of commerce—is consistent with the
constitutional “public use" requirement.60
Second, this Court has found that the transfer of
condemned property to a private entity is consistent with
the constitution’s “public use” requirement when the
private entity remains accountable to the public in its use
of that property.61 Indeed, we disapproved of the use of
eminent domain in Portage Twp Bd of Health in part because
60
See, e.g., Swan v Williams, 2 Mich 427 (1852)
(holding that the condemnation of private property by a
railroad company was consistent with the eminent domain
provision of the federal constitution and the Northwest
Ordinance of 1787).
61
Poletown, supra at 677 (RYAN, J., dissenting), citing
Swan, supra at 439-440 (“’By the terms of the charter the
title to the lands is contingent upon their occupation as a
railroad. It is vested in the company so long as they are
used for a railroad, and no longer.’”).
34
the entity acquiring the condemned land would not be
subject to public oversight.62 As Justice RYAN observed:
[T]his Court disapproved condemnation that
would have facilitated the generation of water
power by a private corporation because the power
company “will own, lease, use, and control” the
water power. In addition, [we] warned, “Land
cannot be taken, under the exercise of the power
of eminent domain, unless, after it is taken, it
will be devoted to the use of the public,
independent of the will of the corporation taking
it.”[63]
In contrast, we concluded in Lakehead Pipe Line Co v Dehn
that the state retained sufficient control of a petroleum
pipeline constructed by plaintiff on condemned property.64
We noted specifically that plaintiff had “pledged itself to
transport in intrastate commerce,”65 that plaintiff’s
pipeline was used pursuant to directions from the Michigan
Public Service Commission, and that the state would be able
to enforce those obligations, should the need arise.66
Thus, in the common understanding of those
sophisticated in the law at the time of ratification, the
62
Poletown, supra. at 677 (RYAN, J., dissenting),
quoting Portage Twp Bd of Health, supra at 539.
63
Poletown, supra at 678 (RYAN, J., dissenting)
(emphasis in original; citations omitted), citing Berrien
Springs Water-Power Co v Berrien Circuit Judge, 133 Mich
48, 51, 53; 94 NW 379 (1903).
64
Lakehead PipeLine Co v Dehn, 340 Mich 25; 64 NW2d
903 (1954).
65
Id. at 42.
66
Id. at 41-42.
35
“public use” requirement would have allowed for the
transfer of condemned property to a private entity when the
public retained a measure of control over the property.
Finally, condemned land may be transferred to a
private entity when the selection of the land to be
condemned is itself based on public concern.67 In Justice
RYAN’s words, the property must be selected on the basis of
“facts of independent public significance,” meaning that
the underlying purposes for resorting to condemnation,
rather than the subsequent use of condemned land, must
satisfy the Constitution’s public use requirement.
The primary example of a condemnation in this vein is
found in In re Slum Clearance,68 a 1951 decision from this
Court. In that case, we considered the constitutionality
of Detroit’s condemnation of blighted housing and its
subsequent resale of those properties to private persons.
The city’s controlling purpose in condemning the properties
was to remove unfit housing and thereby advance public
health and safety; subsequent resale of the land cleared of
blight was “incidental” to this goal.69 We concluded,
67
Poletown, supra at 680 (RYAN, J., dissenting).
68
In re Slum Clearance, 331 Mich 714; 50 NW2d 340
(1951), is cited in Poletown, supra at 680 (RYAN, J.,
dissenting).
69
Id. at 721.
36
therefore, that the condemnation was indeed a “public use,”
despite the fact that the condemned properties would
inevitably be put to private use. In re Slum Clearance
turned on the fact that the act of condemnation itself,
rather than the use to which the condemned land eventually
would be put, was a public use.70 Thus, as Justice RYAN
observed, the condemnation was a “public use” because the
land was selected on the basis of “facts of independent
public significance”71—namely, the need to remedy urban
blight for the sake of public health and safety.
The foregoing indicates that the transfer of condemned
property to a private entity, seen through the eyes of an
individual sophisticated in the law at the time of
ratification of our 1963 Constitution, would be appropriate
in one of three contexts: (1) where “public necessity of
the extreme sort” requires collective action; (2) where the
property remains subject to public oversight after transfer
to a private entity; and (3) where the property is selected
because of “facts of independent public significance,”
rather than the interests of the private entity to which
the property is eventually transferred.72
70
In re Slum Clearance, supra at 720.
71
Poletown, supra at 680 (RYAN, J., dissenting).
72
Id. at 674-681 (RYAN, J., dissenting).
37
3. POLETOWN, THE PINNACLE PROJECT, AND PUBLIC USE
The exercise of eminent domain at issue here—the
condemnation of defendants’ properties for the Pinnacle
Project and the subsequent transfer of those properties to
private entities—implicates none of the saving elements
noted by our pre-1963 eminent domain jurisprudence.
The Pinnacle Project’s business and technology park is
certainly not an enterprise “whose very existence depends
on the use of land that can be assembled only by the
coordination central government alone is capable of
achieving.”73 To the contrary, the landscape of our country
is flecked with shopping centers, office parks, clusters of
hotels, and centers of entertainment and commerce. We do
not believe, and plaintiff does not contend, that these
constellations required the exercise of eminent domain or
any other form of collective public action for their
formation.
Second, the Pinnacle Project is not subject to public
oversight to ensure that the property continues to be used
for the commonweal after being sold to private entities.
Rather, plaintiff intends for the private entities
purchasing defendants’ properties to pursue their own
financial welfare with the single-mindedness expected of
73
Id. at 676 (RYAN, J., dissenting).
38
any profit-making enterprise. The public benefit arising
from the Pinnacle Project is an epiphenomenon of the
eventual property owners’ collective attempts at profit
maximization. No formal mechanisms exist to ensure that
the businesses that would occupy what are now defendants’
properties will continue to contribute to the health of the
local economy.
Finally, there is nothing about the act of condemning
defendants’ properties that serves the public good in this
case. The only public benefits cited by plaintiff arise
after the lands are acquired by the government and put to
private use. Thus, the present case is quite unlike Slum
Clearance because there are no facts of independent public
significance (such as the need to promote health and
safety) that might justify the condemnation of defendants’
lands.
We can only conclude, therefore, that no one
sophisticated in the law at the 1963 Constitution’s
ratification would have understood “public use” to permit
the condemnation of defendants’ properties for the
construction of a business and technology park owned by
private entities. Therefore, the condemnations proposed in
this case are unconstitutional under art 10, § 2.
Indeed, the only support for plaintiff’s position in
our eminent domain jurisprudence is the majority opinion in
39
Poletown. In that opinion per curiam, a majority of this
Court concluded that our Constitution permitted the Detroit
Economic Development Corporation to condemn private
residential properties in order to convey those properties
to a private corporation for the construction of an
assembly plant.74
As an initial matter, the opinion contains an odd but
telling internal inconsistency. The majority first
acknowledges that the property owners in that case “urge[d
the Court] to distinguish between the terms ‘use’ and
‘purpose’, asserting they are not synonymous and have been
distinguished in the law of eminent domain.”75 This
argument, of course, was central to plaintiffs’ case,
because the Constitution allows the exercise of eminent
domain only for a “public use.”76 The Court then asserted
that the plaintiffs conceded that the Constitution allowed
condemnation for a “public use” or a “public purpose,”
despite the fact that such a concession would have
dramatically undermined plaintiffs’ argument:
There is no dispute about the law. All
agree that condemnation for a public use or
purpose is permitted. … The heart of this dispute
is whether the proposed condemnation is for the
74
Id. at 628-629.
75
Id. at 629-630.
76
Const 1963, art 10, § 2 (emphasis added).
40
primary benefit of the public or the private
user.[77]
The majority therefore contended that plaintiffs waived a
distinction they had “urged” upon the Court. And in so
doing, the majority was able to avoid the difficult
question whether the condemnation of private property for
another private entity was a “public use” as that phrase is
used in our Constitution.78
This inconsistency aside, the majority opinion in
Poletown is most notable for its radical and unabashed
departure from the entirety of this Court’s pre-1963
eminent domain jurisprudence. The opinion departs from the
“common understanding” of “public use” at the time of
ratification in two fundamental ways.
First, the majority concluded that its power to review
the proposed condemnations is limited because
“[t]he determination of what constitutes a public
purpose is primarily a legislative function,
subject to review by the courts when abused, and
the determination of the legislative body of that
matter should not be reversed except in instances
77
Poletown, supra at 632.
78
Moreover, as Justice RYAN noted, the majority also
conflated the broad construction of “public purpose” in our
taxation jurisprudence with the more limited construction
of “public purpose” in the eminent domain context. See id.
at 665-667.
41
where such determination is palpable and
manifestly arbitrary and incorrect.”[79]
The majority derived this principle from a plurality
opinion of this Court80 and supported the application of the
principle with a citation of an opinion of the United
States Supreme Court concerning judicial review of
congressional acts under the Fifth Amendment of the federal
constitution.81 Neither case, of course, is binding on this
Court in construing the takings clause of our state
Constitution, and neither is persuasive authority for the
use to which they were put by the Poletown majority.
It is not surprising, however, that the majority would
turn to nonbinding precedent for the proposition that the
Court’s hands were effectively tied by the Legislature. As
Justice RYAN’s dissent noted:
In point of fact, this Court has never
employed the minimal standard of review in an
eminent domain case which is adopted by the
[Poletown] majority . . . . Notwithstanding
explicit legislative findings, this Court has
always made an independent determination of what
constitutes a public use for which the power of
eminent domain may be utilized.[82]
79
Id. at 632, quoting Gregory Marina, Inc v Detroit,
378 Mich 364, 396; 144 NW2d 503 (1966) (plurality opinion).
80
Gregory Marina, supra.
81
Berman v Parker, 348 US 26; 75 S Ct 98; 99 L Ed 27
(1954). Justice RYAN noted in his Poletown dissent that the
majority’s reliance on this case “[was] particularly
disingenuous.” Poletown, supra at 668.
82
Id. at 669 (emphasis in original).
42
Our eminent domain jurisprudence since Michigan’s entry
into the union amply supports Justice RYAN’s assertion.83
Questions of public purpose aside, whether the proposed
condemnations were consistent with the Constitution’s
“public use” requirement was a constitutional question
squarely within the Court’s authority.84 The Court’s
reliance on Gregory Marina and Berman for the contrary
position was, as Justice RYAN observed, “disingenuous.”85
Second, the Poletown majority concluded, for the first
time in the history of our eminent domain jurisprudence,
that a generalized economic benefit was sufficient under
art 10, § 2 to justify the transfer of condemned property
to a private entity. Before Poletown, we had never held
that a private entity’s pursuit of profit was a “public
use” for constitutional takings purposes simply because one
entity’s profit maximization contributed to the health of
the general economy.
83
See, e.g., Shizas v City of Detroit, 333 Mich 44; 52
NW2d 589 (1952) (holding that the proposed condemnation was
unconstitutional); similarly Portage Twp Bd of Health,
supra; Ryerson v Brown, 35 Mich 333 (1877); Trombley,
supra.
84
See, e.g., Lakehead Pipe Line Co. v Dehn, 340 Mich.
25, 39; 64 NW2d 903 (1954) (“’The question of whether the
proposed use is a public use is a judicial one.’”), quoting
Cleveland v Detroit, 332 Mich 172, 179; 33 NW2d 747 (1948).
85
Poletown, supra at 668 (RYAN, J., dissenting).
43
Justice COOLEY considered a similar proposition86 well
over a century ago and held that incidental benefits to the
economy did not justify the exercise of eminent domain for
private, water-powered mills:
The statute [allowing the condemnation of
private property for the construction of private
powermills] appears to have been drawn with
studious care to avoid any requirement that the
person availing himself of its provisions shall
consult any interest except his own, and it
therefore seems perfectly manifest that when a
public use is spoken of in this statute nothing
further is intended than that the use shall be
one that, in the opinion of the commission or
jury, will in some manner advance the public
interest. But incidentally every lawful business
does this.[87]
Justice COOLEY was careful to point out that the Court was
not ruling out the possibility that “incidental benefits to
the public” might, in some cases, “justify an exercise of
the right of eminent domain.”88 But Wayne County has not
directed us to a single case, other than Poletown, holding
that a vague economic benefit stemming from a private
profit-maximizing enterprise is a “public use.”
86
Ryerson, supra at 337 (“An examination of the
adjudged cases will show that the courts, in looking about
for the public use that was to be accommodated by the
statute, have sometimes attached considerable importance to
the fact that the general improvement of mill sites, as
property possessing great value if improved, and often
nearly worthless if not improved, would largely conduce to
the prosperity of the state.”).
87
Id. at 339.
88
Id.
44
Every business, every productive unit in society,
does, as Justice COOLEY noted, contribute in some way to the
commonweal.89 To justify the exercise of eminent domain
solely on the basis of the fact that the use of that
property by a private entity seeking its own profit might
contribute to the economy’s health is to render impotent
our constitutional limitations on the government’s power of
eminent domain. Poletown’s “economic benefit” rationale
would validate practically any exercise of the power of
eminent domain on behalf of a private entity. After all,
if one’s ownership of private property is forever subject
to the government’s determination that another private
party would put one’s land to better use, then the
ownership of real property is perpetually threatened by the
expansion plans of any large discount retailer,
“megastore,” or the like. Indeed, it is for precisely this
reason that this Court has approved the transfer of
condemned property to private entities only when certain
other conditions—those identified in our pre-1963 eminent
domain jurisprudence in Justice RYAN’s Poletown dissent—are
present.90
89
Id.
90
See Part B(2).
45
Because Poletown’s conception of a public use—that of
“alleviating unemployment and revitalizing the economic
base of the community”91—has no support in the Court’s
eminent domain jurisprudence before the Constitution’s
ratification, its interpretation of “public use” in art 10,
§ 2 cannot reflect the common understanding of that phrase
among those sophisticated in the law at ratification.
Consequently, the Poletown analysis provides no legitimate
support for the condemnations proposed in this case and,
for the reasons stated above, is overruled.
We conclude that the condemnations proposed in this
case do not pass constitutional muster because they do not
advance a public use as required by Const 1963, art 10, §
2. Accordingly, this case is remanded to the Wayne Circuit
Court for entry of summary disposition in defendants’
favor.
C. RETROACTIVITY
In the process of determining that the proposed
condemnations cannot pass constitutional muster, we have
concluded that this Court’s Poletown opinion is
inconsistent with our eminent domain jurisprudence and
advances an invalid reading of our constitution. Because
that decision was in error and effectively rendered
91
Poletown, supra at 634.
46
nugatory the constitutional public use requirement, it must
be overruled.92
It is true, of course, that this Court must not
“lightly overrule precedent.”93 But because Poletown itself
was such a radical departure from fundamental
constitutional principles and over a century of this
Court’s eminent domain jurisprudence leading up to the 1963
Constitution, we must overrule Poletown in order to
vindicate our Constitution, protect the people’s property
rights, and preserve the legitimacy of the judicial branch
as the expositor—not creator—of fundamental law.94
In the twenty-three years since our decision in
Poletown, it is a certainty that state and local government
actors have acted in reliance on its broad, but erroneous,
interpretation of art 10, § 2. Indeed, Wayne County’s
course of conduct in the present case was no doubt shaped
by Poletown’s disregard for constitutional limits on the
exercise of the power of eminent domain and the license
that opinion appeared to grant to state and local
authorities.
92
Pohutski v City of Allen Park, 465 Mich 675, 695;
641 NW2d 219 (2002).
93
Id. at 693.
94
Id. at 695.
47
Nevertheless, there is no reason to depart from the
usual practice of applying our conclusions of law to the
case at hand.95 Our decision today does not announce a new
rule of law, but rather returns our law to that which
existed before Poletown and which has been mandated by our
constitution since it took effect in 1963.96 Our decision
simply applies fundamental constitutional principles and
enforces the “public use” requirement as that phrase was
used at the time our 1963 Constitution was ratified.97
Therefore, our decision to overrule Poletown should
have retroactive effect, applying to all pending cases in
which a challenge to Poletown has been raised and
preserved.98
95
See, e.g., Lesner v Liquid Disposal, 466 Mich 95,
108; 643 NW2d 553 (2002).
96
Pohutski, supra at 696.
97
See Baughman, Justice Moody’s lament unanswered:
Michigan’s unprincipled retroactivity jurisprudence, 79
Mich B J 664 (2000), quoting COOLEY, Constitutional
Limitations, 91 (“When the Michigan Supreme Court exercises
the ‘judicial power,’ it is, as said by Justice Cooley,
concerned with a determination of what the existing law is,
even in ‘changing’ a mistaken interpretation, rather than
making a ‘predetermination of what the law shall be for the
regulation of all future cases,’ which is an act that
‘distinguishes a legislative act from a judicial one.’”).
98
We disagree with Justice CAVANAGH’s conclusion that
this decision should apply prospectively. First, this case
presents none of the exigent circumstances that warranted
the “extreme measure” of prospective application in
Pohutski v City of Allen Park. Gladych v New Family Homes,
Inc, 468 Mich 594, 606 n 6; 664 NW2d 705 (2003. Second,
48
CONCLUSION
We conclude that the condemnation of defendants’
properties is consistent with MCL 213.23. However, we also
hold that the proposed condemnations do not advance a
“public use” as required by art 10, § 2 of our 1963
Constitution. Therefore, the decisions of the lower courts
are reversed and this matter is remanded for entry of an
order of summary disposition in defendants’ favor.
Robert P. Young, Jr.
Maura D. Corrigan
Clifford W. Taylor
Stephen J. Markman
there is a serious question as to whether it is
constitutionally legitimate for this Court to render purely
prospective opinions, as such rulings are, in essence,
advisory opinions. The only instance in which we are
constitutionally authorized to issue an advisory opinion is
upon the request of either house of the legislature or the
governor—and, then, only “on important questions of law
upon solemn occasions as to the constitutionality of
legislation after it has been enacted into law but before
its effective date.” Const 1963 art 3, § 8. Furthermore,
this Court has recognized that “[c]omplete prospective
application has generally been limited to decisions which
overrule clear and uncontradicted case law.” Hyde v Univ
of Mich Bd of Regents, 426 Mich 223, 240; 393 NW2d 847
(1986). Because Poletown was a radical departure from our
eminent domain jurisprudence, it is hardly the “clear and
uncontradicted case law” contemplated by Hyde.
49
S T A T E O F M I C H I G A N
SUPREME COURT
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124070
EDWARD HATHCOCK,
Defendant-Appellant.
_______________________________/
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124071
ARRON T. SPECK and DONALD E. SPECK,
Defendants-Appellants.
_______________________________/
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124072
AUBINS SERVICE, INC. and DAVID R.
YORK, Trustee of the DAVID R. YORK
REVOCABLE LIVING TRUST,
Defendants-Appellants.
_______________________________/
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124073
JEFFREY J. KOMISAR,
Defendant-Appellant.
_______________________________/
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124074
ROBERT WARD and LELA WARD,
Defendants-Appellants,
and
HENRY Y. COOLEY,
Defendant.
_______________________________/
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124075
MRS. JAMES GRIZZLE and MICHELLE
A. BALDWIN,
Defendants-Appellants,
and
RAMI FAKHOURY,
Defendant.
_______________________________/
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124076
STEPHANIE A. KOMISAR,
Defendant-Appellant.
_______________________________/
2
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124077
THOMAS L. GOFF, NORMA GOFF, MARK
A. BARKER, JR., and KATHLEEN A. BARKER,
Defendants-Appellants.
_______________________________/
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124078
VINCENT FINAZZO,
Defendant-Appellant,
and
AUBREY L. GREGORY and DULCINA
GREGORY,
Defendants.
_______________________________
WEAVER, J. (concurring in part and dissenting in part)
I concur with the majority’s result and decision to
overrule Poletown Neighborhood Council v Detroit, 410 Mich
616; 304 NW2d 455 (1981), but do so for my own reasons.1
The Michigan Constitution states:
Private property shall not be taken for public
use without just compensation therefor being
1
I also concur in the majority’s reasoning for
applying this decision retroactively.
3
first made and secured in a manner prescribed by
law . . . . [Const 1963, art 10, § 2.]
Proper application of the art 10, § 2’s “public use”
limitation on the exercise of eminent domain requires that
the Court abandon Poletown’s holding that land can be taken
by the government and transferred to a private entity upon
the mere showing that the economy will generally benefit
from the condemnation. Thus, Wayne County’s attempt to use
its eminent domain authority to transfer defendants’
properties to private developers to be included in a
business and technology park violates the “public use”
limitation of art 10, § 2 even though the park might
benefit the region’s economy.2
I dissent from the majority’s holding that “public
use” must be interpreted as it would have been by those
“sophisticated” or “versed in the law” at the time of the
1963 Constitution’s ratification and from their application
of that holding to the facts of this case. Unlike the
majority, I would employ the long-established method of
constitutional interpretation that restrains judges by
2
The public purposes achievable by public corporations
through condemnation pursuant to MCL 213.23 must conform to
the “public use” limitation of Const 1963 art 10, §2.
Because the county’s public purposes extend well beyond the
constitution’s “public use” limitation, the county may not
condemn the properties at issue.
4
requiring them to ascertain the common understanding of the
people who adopted the constitution. The majority’s focus
on the understanding of those “sophisticated in the law” is
elitist; it perverts the primary rule of constitutional
interpretation — that constitutions must be interpreted as
the people, learned and unlearned, would commonly
understand them. It invites the erosion of constitutional
protections intended by the Michigan voters who ratified
the 1963 Constitution.3 The majority’s approach ignores the
words of Michigan’s respected jurist, Justice THOMAS M.
COOLEY, who warned against the tendency to force from the
Constitution, by “interested subtlety and ingenious
refinement,” meaning that was never intended by the people
who adopted it.4
3
As explained in Univ of Michigan Regents v Michigan,
395 Mich 52, 74-75; 235 NW2d 1 (1975)(citations omitted)
when the people ratified the 1963 Constitution, “the voters
had before them the constitutional language and the
explanatory ‘Convention Comments’ adopted by the delegates.
Therefore, it is not the prerogative of this Court to
change the plain meaning of the words in the constitution
‘as understood by the people who adopted it.’”
4
1 Cooley, Constitutional Limitations, (8th ed), p
131.
5
I. Constitutional Interpretation
Justice COOLEY’S often-cited description of the primary
rule of constitutional interpretation bears repeating:
“A constitution is made for the people and
by the people. The interpretation that should be
given it is that which reasonable minds, the
great mass of people themselves, would give it.
‘For as the Constitution does not derive its
force from the convention which framed, but from
the people who ratified it, the intent to be
arrived at is that of the people, and it is not
to be supposed that they have looked for any dark
or abstruse meaning in the words employed, but
rather that they have accepted them in the sense
most obvious to the common understanding, and
ratified the instrument in the belief that that
was the sense designed to be conveyed.’”
[Traverse City School Dist v Attorney General,
384 Mich 390, 405; 185 NW2d 9 (1971), quoting
Cooley’s Const Lim 81 (emphasis in Traverse City
School Dist).]
To ascertain the common understanding of the Constitution,
the Court may also consider the circumstances surrounding
the adoption of a constitutional provision and the purpose
sought to be accomplished by it. Traverse City School
Dist, supra at 405.
Contrary to Justice COOLEY’S warnings, the majority
claims that the relevant “common understanding” by which we
must interpret art 10, § 2 is that of those “sophisticated
in the law at the time of the constitution’s ratification.”
Ante at 32. Until the majority’s decision in this case,
this Court has never asserted that the term “public use” is
6
a term of such “enormous complexity” that the people who
ratified the Constitution would be unable to grasp its
meaning.5 This Court’s first reliance on the perspective
of those “sophisticated in the law” was in Michigan
Coalition of State Employee Unions v Civil Service Comm,
465 Mich 212; 634 NW2d 692 (2001). After appearing to
acknowledge that constitutional language should be
interpreted as it would have been understood by those who
ratified it, the opinion asked, “Yet, what if the
constitution had no plain meaning, but rather is a
technical and legal term or phrase of art?” Id at 222.
Citing, out of context, a statement by Justice COOLEY
regarding commonly understood technical or legal terms that
must be supposed to have been employed in their technical
5
Ante at 31 (citing Silver Creek Drain Dist v
Extrusions Div Inc, 468 Mich 367, 375; 663 NW2d 436 (2003).
In Silver Creek, the same majority of justices incorrectly
held that the term “just compensation” in Const 1963, art
10, § 2 must be interpreted as those “sophisticated in the
law” would have understood the term at the time of the
Constitution’s ratification. I dissented because, “’[j]ust
compensation’ has long been readily and reasonably
understood to be that amount of money that puts the
property owner whose property is taken in as good, but not
better, a financial position after the taking as the
property owner enjoyed before the taking.” Silver Creek,
supra at 384-385 (WEAVER, J. dissenting in part).
7
sense,6 the Court majority then erroneously equated such
terms to words that are “in no way part of the common
vocabulary.”7 The Court majority next launched its
unprecedented rule of constitutional interpretation:
This, then, is the rule: if a
constitutional phrase is a technical legal term
or a phrase of art in the law, the phrase will be
given the meaning that those sophisticated in the
law understood at the time of the enactment
unless it is clear from the constitutional
language that some other meaning was intended.
[Id. at 223.]
As in Michigan Coalition, the majority in this case
claims to find support in Justice COOLEY’S treatise on
constitutional interpretation, in which he wrote:
[I]t must not be forgotten, in construing our
constitutions, that in many particulars they are
but the legitimate successors of the great
charters of English liberty, whose provisions
declaratory of the rights of the subject have
acquired a well-understood meaning, which the
people must be supposed to have had in view in
adopting them. We cannot understand these
provisions unless we understand their history;
and when we find them expressed in technical
words, and words of art, we must suppose these
words to be employed in their technical sense.[8]
6
Id. (citing 1 Cooley, Constitutional Limitations (8th
ed), p 132).
7
Id. at 223, citing Walker v Wolverine Fabricating &
Mfg, Inc, 425 Mich 586, 596; 391 NW2d 296 (1986).
8
1 Cooley, Constitutional Limitations (8th ed), p 132.
8
The majority takes this quote out of context and
twists its meaning. When Justice COOLEY’S statement is
returned to its full context, it neither supports nor
justifies the majority’s abandonment of the people’s common
understanding of constitutional terms for the understanding
of those “sophisticated or learned in the law.”
As is revealed in the full text, Justice COOLEY sought
to convey that certain constitutional terms have technical
or legal meaning that is known to every person, learned or
unlearned. Regarding such terms, COOLEY suggested that it is
unnecessary for the Court to give them a more popular or
plainer meaning. Careful attention is warranted to Justice
COOLEY’S language that in context reads:
In interpreting clauses we must presume that
words have been employed in their natural and
ordinary meaning. As Marshall, Ch. J., says:
The framers of the constitution, and the people
who adopted it, “must be understood to have
employed the words in their natural sense, and to
have intended what they have said.” This is but
saying that no forced or unnatural construction
is to be put upon their language; and it seems so
obvious a truism that one expects to see it
universally accepted without question; but the
attempt is made so often by interested subtlety
and ingenious refinement to induce the courts to
force from these instruments a meaning which
their framers never held, that it frequently
becomes necessary to re-declare this fundamental
maxim. Narrow and technical reasoning is
misplaced when it is brought to bear upon an
instrument framed by the people themselves, for
themselves, and designed as a chart upon which
9
every man, learned and unlearned, may be able to
trace the leading principles of government.
But it must not be forgotten, in construing our
constitutions, that in many particulars they are
but the legitimate successors of the great
charters of English liberty, whose provisions
declaratory of the rights of the subject have
acquired a well-understood meaning, which the
people must be supposed to have had in view in
adopting them. We cannot understand these
provisions unless we understand their history;
and when we find them expressed in technical
words, and words of art, we must suppose these
words to be employed in their technical sense.
When the Constitution speaks of an ex post facto
law, it means a law technically known by that
designation; the meaning of the phrase having
become defined in the history of constitutional
law, and being so familiar to the people that it
is not necessary to employ language of a more
popular character to designate it. The technical
sense in these cases is the sense popularly
understood, because that is the sense fixed upon
the words in legal and constitutional history
where they have been employed for the protection
of popular rights.[9]
This passage does not suggest that courts should defer
to the understanding of those “learned or sophisticated in
the law.” To the contrary, it simply affirms that certain
legal and constitutional terms are so embedded in our
constitutional law and history and their meanings so
familiar to the people, that the court need not and must
not attempt to redefine them. Clearly, Justice COOLEY does
not suggest that the people’s common understanding of such
terms be replaced by a “sophisticated” understanding that
9
Id. at 130-133(emphasis added).
10
“may be forced, by ”interested subtlety and ingenious
refinement,” from constitutional language.10 But this is
the very danger that the majority’s approach presents.
Justice COOLEY understood, as the majority refuses to
accept, that the people do understand “the sense fixed upon
the words in legal and constitutional history where they
have been employed for the protection of popular rights.”11
By substituting the “learned and sophisticated”
understanding for that of the people’s common
understanding, the majority invites future judicial
distortion of the Constitution, which was made by and for
the people, and invites “interested subtlety and ingenious
refinement” to “force from these instruments a meaning
which their framers never held.”12
10
Id. at 131.
11
Id. at 132-133.
12
Id. at 131. The majority has also incorrectly invoked
its new rule of constitutional construction to interpret
Const 1963, art 1, § 14, calling “The right of trial by
jury” a “technical legal phrase with the meaning those
understanding the jurisprudence of this state would give
it.” Phillips v Mirac, Inc, 470 Mich 415; __ NW2d__
(2004). Previously, in 1952, this Court took a much more
straightforward approach to the same phrase when trying to
determine whether a particular statute provided for a right
to a trial by jury. Conservation Dep’t v Brown, 335 Mich
343, 346; 55 NW2d 859 (1952). The Court stated, “The
statute under which these . . . proceedings were brought is
silent on the subject of a jury. Michigan Constitution
1908, art 2, § 13, provides, as did Michigan’s previous
11
Constitutional terms with commonly understood
technical or legal meanings must, therefore, be
distinguished from terms that have no meaning in the common
vocabulary. For example, in Walker v Wolverine Fabricating
& Mfg Co, Inc, 425 Mich 586, 596; 391 NW2d 296 (1986), the
Court held that “[a]ppeals . . . tried de novo” was a term
that had no meaning in the common vocabulary. The Court
noted that scholars disagreed and constitutional convention
delegates expressed confusion regarding the term’s
meaning.13 Walker then explained the appropriate approach
to the interpretation of such terms. In order to ascertain
the common understanding, Walker stated:
First, one can look to the Constitutional
Convention’s Address to the People for its
explanation of an ambiguous term. Second, one
can survey contemporaneous judicial decision and
legal commentaries for evidence of a consensus
within the legal community regarding the meaning
of a term.14
Constitutions, that ‘The right of trial by jury shall
remain.’ Thus the right to trial by jury is preserved in
all cases where it existed prior to the adoption of the
Constitution.” Conservation Dep’t, supra at 346. That the
Court then considered the right as it existed in the common
law before the ratification of the 1908 constitution does
not transform the “right of trial by jury” into a concept
too complex for nonlawyers and nonjudges, who are the vast
majority of the citizens of this state.
13
Walker, supra at 598-599.
14
Walker, supra at 596-597.
12
The process of ascertaining the meaning of terms in a
constitution that are not part of the common vocabulary
through a survey of judicial decisions reflects the rule
that the “framers of a Constitution are presumed to have
knowledge of existing laws, . . . and act in reference to
that knowledge.”15 However, the process of ascertaining the
understanding of the framers should not be confused with
the process of ascertaining the understanding of the
ratifiers.
Adhering to the common understanding of the ratifiers,
as opposed to that of the “sophisticated in the law,” helps
ensure that courts restrain themselves from substituting a
different meaning of a word to suit a court’s own policy
preferences. As Justice COOLEY so wisely noted, “[n]arrow
and technical reasoning is misplaced when it is brought to
bear upon an instrument framed by the people themselves,
for themselves, and designed as a chart upon which every
man, learned and unlearned, may be able to trace the
leading principles of government.”16 It is perhaps for this
15
Id. at 597 (citations omitted). See also, Michigan
United Conservation Clubs v Secretary of State (After
Remand), 464 Mich 359, 417; 630 NW2d 297 (2001) (WEAVER, J.,
dissenting).
16
1 Cooley, Constitutional Limitations (8th ed), p
131-132.
13
reason that Justice COOLEY concluded that “[n]o satisfactory
definition of the term ‘public use’ has ever been achieved
by the courts.”17
II. The People’s Common Understanding of “Public Use”
From the ordinance for government of the Northwest
Territory of 1787 to the Michigan Constitution of 1963,
every document governing the state of Michigan has
recognized the sovereign’s power of eminent domain.18 In
1852, this Court noted that “the whole policy of this
country relative to roads, mills, bridges and canals, rests
upon this single power [of eminent domain] . . . .”19 Thus,
eminent domain has long been one of the “leading principles
of government” that we must assume the people understood
when they ratified each of Michigan’s constitutions.20
17
2 Cooley, Constitutional Limitations (8th ed), p
1139-1140 (emphasis added).
18
See, e.g., 1787 Gov’t of Northwest Territory, art 2;
1805 Gov’t of Michigan Territory, § 2; Const 1835, art 1, §
19; Const 1850, art 15, § 9 and art 18, §14; Const 1908,
art 13, §1 and § 5; and Const 1963, art 10, § 2.
19
Swan v Williams, 2 Mich 427, 432 (1852), quoting
Chancellor Walworth, 3 Paige R 73.
20
1 Cooley, Constitutional Limitations (8th ed), p
132.
14
While eminent domain is an attribute of sovereignty,21
“public use” is a limitation on the exercise of the power
of eminent domain. In every Michigan constitution, the
voters of Michigan imposed a “public use” limitation on the
exercise of the power of eminent domain.22 To ascertain the
people’s understanding of art 10, § 2, it is to be
remembered that:
The primary source for ascertaining the
meaning of a constitutional provision is to
determined its plain meaning as understood by its
ratifiers at the time of its adoption. This is
so because “the constitution, although drawn up
by a convention, derives no vitality from its
framers, but depends for its force entirely upon
the popular vote.”
Nevertheless, “to clarify meaning, the
circumstances surrounding the adoption of a
constitutional provision and the purpose sought
to be accomplished may be considered.” This
Court cannot properly protect the mandate of the
people without examining both the origin and
purpose of a constitutional provision, because
provisions stripped of their context may be
manipulated and distorted into unintended
meanings. Indeed we must heed the intentions of
the ratifiers because our constitution gains its
authority from its ratification by the people—to
do otherwise deprives them of their right to
govern. [Peterman v Dep’t of Natural Resources,
446 Mich 177, 184-185; 521 NW2d 499 (1994)
(citations omitted; emphasis added).]
21
Sinas v City of Lansing, 382 Mich 407, 411; 170 NW2d
23 (1969); Swan, supra at 431.
22
Const 1835, art 1, § 19; Const 1850, art 15, § 9,
§14; Const 1908, art 13, §1.
15
As clearly and fully expressed by this Court in
Peterman, art 10, § 2, “has ‘acquired a well-understood
meaning, which the people must be supposed to have had in
view in adopting them. We cannot understand these
provisions unless we understand their history; and when we
find them expressed in technical words, and words of art,
we must suppose these words to be employed in their
technical sense.’”23
To clarify the meaning understood by the ratifiers of
art 10, § 2, Peterman cited an 1857 case discussing the
power of and limitations on eminent domain and in a
footnote provided the following historical context:
23
Peterman, supra at 186 (quoting 1 Cooley,
Constitutional Limitations (8th ed), p 132. The majority
misuses Peterman to try to support the majority’s elitist
holding that art 10, § 2 must be interpreted as it would
have been by person’s “sophisticated in the law.” Read in
context above, Peterman squarely acknowledged that art 10,
§ 2 has acquired a well-understood meaning, which the
people must be supposed to have had in view. That “public
use” might be called a technical term or term of art does
not remove it from the understanding of every person. The
majority’s perversion of the rule of common understanding
is more than merely semantic. The majority’s approach
invites “sophisticated” refinement of the people’s “right
to govern” themselves through their popular vote. It
allows the “sophisticated and learned in the law” to,
intentionally or not, strip constitutional provisions of
their context and manipulate and distort their meaning.
See, e.g., Peterman, supra at 185.
16
Before the American Revolution and the
drafting of the United States Constitution, the
sovereign was not only empowered to take private
property for public use, but such takings were
almost always uncompensated. . . . Nevertheless,
the newly formed republic became increasingly
hostile to governmental infringement of property
rights as states seized loyalist lands, suspended
or remitted debts and the collection of taxes,
printed inflationary paper money, and delayed
legal enforcement of property rights. To address
these abuses was born the requirement that
government may not take private property for
public use without just compensation. [Id. at 187
n 14.]
Such historical perspective helps clarify the limitations
on the exercise of eminent domain intended by the
ratifiers. Peterman’s approach is entirely distinct from
the majority’s reliance on the “sophisticated”
understanding of case law addressing the public use
limitation. Peterman’s commitment to ascertaining the
common understanding of the ratifiers stands in stark
contrast to the majority’s statement that the people’s
common understanding is “fictionalized.” Ante at 31, n 48.
Determining whether a particular exercise of eminent
domain is for a constitutionally permissible “public use”
has traditionally and necessarily involved consideration of
the use to which the condemned property will be put. In
1877, this Court held that to constitutionally exercise the
power of eminent domain, the use must “be public in fact;
in other words, that it should contain provisions entitling
17
the public to accommodations.”24 Thus, this Court upheld
the condemnation of land for the laying out of a public
highway;25 the condemnation of land for the opening of a
public avenue;26 a statute delegating condemnation authority
to cities, villages, townships, and counties for the
construction of airports;27 and a public school district’s
condemnation of property for use by the school.28 In each
of these cases the public retained the right to actually
use the land.
A statute authorizing condemnation that merely
requires the use of condemned property to generally serve
the public interest is insufficient to justify the exercise
of eminent domain authority because, “every lawful business
does this.”29 It is thus well-established that the “public
use” requirement precludes the condemnation of property for
24
Ryerson v Brown, 35 Mich 333, 338 (1877).
25
Rogren v Corwin, 181 Mich 53; 147 NW 517 (1914).
26
In re Opening of Gallagher Ave, 300 Mich 309, 312; 1
NW2d 553 (1942).
27
In re Petition of City of Detroit for Condemnation
of Lands for Airport, 308 Mich 480; 14 NW2d 140 (1944).
28
Union School Dist of the City of Jackson v Starr
Commonwealth for Boys, 322 Mich 165; 33 NW2d 807 (1948).
29
Ryerson, supra at 339.
18
private use even if the private use will generally benefit
the public.30
“The public use implies a possession,
occupation, and enjoyment of the land by the
public at large, or by public agencies; and due
protection to the rights of private property will
preclude the government from seizing it in the
hands of the owner, and turning it over to
another, on vague grounds of public benefit, to
spring from the more profitable use to which the
latter may devote it. [Portage Twp Bd of Health v
Van Hoesen, 87 Mich 533, 538; 49 NW 894 (1891),
quoting Cooley, Const Lim (6th ed) p 654.]
This Court has held, therefore, that condemnation of
land for a rail spur serving a single private company was
an unconstitutional exercise of condemnation power because
the private company could control its use and exclude the
public.31 Similarly, this Court has held that a statute
authorizing condemnation of property to provide a private
landowner access to his landlocked private property was
unconstitutional.32
Ultimate private ownership of lands proposed for
condemnation, however, does not necessarily render the
taking of land unconstitutional under the “public use”
requirement. This Court has upheld the exercise of eminent
30
See, e.g., Pere Marquette R Co v United States
Gypsum Co, 154 Mich 290; 117 NW 733 (1908).
31
Pere Marquette, supra at 300.
32
Tolksdorf v Griffith, 464 Mich 1, 9; 626 NW2d 163
(2001).
19
domain involving lands that remain in private ownership
(albeit new private ownership) where the public retains the
right to use the lands taken.
In every instance of turnpike, plank road,
bridge, ferry, and canal companies, [eminent
domain] has been employed, as well as those of
railroads. All this class of incorporations have
been enacted upon the hypothesis that the lands
taken for these purposes were taken for public
use, and not for private endowment . . . . The
right to purchase and hold lands for the purposes
of the road, being a right delegated in virtue of
the eminent domain of the government, and
derogatory to those of the citizen whose property
is condemned, must be construed as conferring no
right to hold the property in derogation of the
purposes for which it was taken. [Swan, supra at
439-440 (emphasis added).]
Thus, this Court upheld a statute providing for the
appropriation of private property for a railroad designed
to provide public travel33 and a statute authorizing the
condemnation of property for an interstate bridge available
for public travel.34 In these cases, ultimate private
ownership of condemned land did not offend the “public use”
limitation even though the owner would profit from its
ownership, because the owner was and could be compelled to
33
Swan, supra. (Swan involved the interpretation of
the eminent domain provisions of the United States
Constitution and the Ordinance of 1787 governing the
Northwest Territory.)
34
Detroit International Bridge Co v American Seed Co,
249 Mich 289; 228 NW 791 (1930).
20
continue to devote the condemned land to the public use for
which it was condemned.35
While this Court’s evaluation of whether a
condemnation is for a “public use” has traditionally
involved consideration of the public’s use or control over
the use of the property condemned, this Court has
considered the government purposes to be achieved by the
condemnation. For example, this Court held the
transportation of oil throughout the state to be a valid
legislative purpose and upheld the constitutionality of a
statute allowing the condemnation of lands for a pipeline
to serve that purpose.36 There the Court concluded,
however, that the pipeline was a “public use benefiting the
people of the State of Michigan” and emphasized that the
state retained control of the pipeline allowing it to
ensure its devotion to public use.37 The Court has also
excused the absence of ultimate public use or control over
lands taken and then transferred to a private entity in
cases involving the removal of slums and blight that
35
Swan, supra at 436, and Detroit International Bridge
Co, supra at 299.
36
Lakehead Pipe Line Co, Inc v Dehn, 340 Mich 25, 36;
64 NW2d 903 (1954).
37
Id. at 37 and 40.
21
endangered public health, morals, safety, and welfare.38 In
these cases, the Court reasoned that “slum clearance is in
any event the one controlling purpose of the
condemnation.”39
Until Poletown, this Court’s decisions consistently
distinguished “public use,” as that concept limits the
exercise of eminent domain, from private uses and uses that
only generally advance the public interest. This
distinction was readily traceable in the law and must be
assumed to have been well understood by Michigan citizens,
the vast majority of whom are not lawyers and are not
“sophisticated in the law.” The distinction between a
“public use” and uses that are strictly private or only
generally beneficial to the public protects against the
arbitrary exercise of the “extraordinary” sovereign power
of eminent domain.40
Wayne County’s purpose supporting each of the
condemnation proceedings at issue is the creation of a
contiguous land mass of approximately 1,300 acres for the
38
See, e.g., In re Slum Clearance, 331 Mich 714; 50
NW2d 340 (1951), Sinas v City of Lansing, 382 Mich 407; 170
NW2d 23 (1969), and City of Center Line v Michigan Bell Tel
Co, 387 Mich 260; 196 NW2d 144 (1972).
39
In re Slum Clearnace, supra at 72 (emphasis in
original).
40
Swan, supra at 433.
22
development of the Pinnacle Aeropark Project. The county
states that contiguity is necessary to attract investors
and further that the development will create thousands of
jobs and tens of millions of dollars in tax revenue, while
broadening its primarily industrial tax base.
However laudable these goals are, the facts remain
that Wayne County intends to transfer these properties to
private entities. These entities will be under no
obligation to let the public in their doors or even on
their lands. There is no way to characterize the county’s
transfer of dominion over these properties as accommodating
“public use.” Further, Wayne County will not retain
control over the properties or enterprises to ensure their
devotion to public use. Nor can it be said that a
controlling purpose of the condemnations is the removal of
blight or slums that endanger the public health, morals,
safety, and welfare. This case is indeed a very
straightforward example of government taking one person’s
property for the sole benefit of another.
III. The Majority Abandons the Common Understanding
The majority’s application of its “sophisticated in
the law” approach to this case is unnecessary and subject
to abuse: it invites the erosion of the limitations placed
on the exercise of eminent domain. As noted by Justice
23
COOLEY, “[a] little investigation will show that any
definition [of ‘public use’] attempted would exclude some
subjects that properly should be included in, and include
some subjects that must be excluded from, the operation of
the words ‘public use’ . . . .”41 Nevertheless, the
majority opines that
transfer of condemned property to a private
entity, seen through the eyes of an individual
sophisticated in the law at the time of
ratification of our 1963 Constitution, would be
appropriate in one of three contexts: (1) where
‘public necessity of the extreme sort’ requires
collective action; (2) where the property remains
subject to public oversight after transfer to a
private entity; and (3) where the property
selected is due to “facts of independent public
significance,” rather than the interests of the
private entity to which the property is
42
eventually transferred.
The majority’s categorization of Michigan case law
addressing transfers of property to private entities is
better suited to articles in law journals that have no
force of law than it is to judicial opinions. If, instead
of the common understanding of “public use,” future courts
rely on “facts of independent public significance” to
determine whether a condemnation is for a “public use,”
then it is easy to imagine how the people’s limit on the
41
2 Cooley, Constitutional Limitations (8th ed), p
1139-1140.
42
Ante at 39 (citing Poletown, supra, at 674-681 (RYAN,
J., dissenting)).
24
exercise of eminent domain might be eroded. For example, a
municipality could declare the lack of a two-car garage to
be evidence of blight, as has been attempted in Lakewood,
Ohio43 or justify condemning a small brake repair business
so that the property can be used for a hardware store, as
has been attempted in Mesa, Arizona.44 The majority’s
“sophisticated in the law” approach makes the intended
protections from such encroachments on protected rights
less certain because it moves away from the constitutional
text.
The majority’s categories are based on what the
majority has determined is the “sophisticated”
understanding of case law. However, “sophisticated”
categorizations should not replace the traditional approach
to ascertaining the common understanding of the ratifiers.
Justice COOLEY aptly summarized the “public use” limitations
as follows:
[T]he public use implies a possession,
occupation, and enjoyment of the land by the
public at large, or by public agencies; and due
protection to the rights of private property will
preclude the government from seizing it in the
hands of the owner, and turning it over to
another on vague grounds of public benefit to
43
Engage, Berman and Beyond: The Misuse of Blight
Laws and Eminent Domain, (Vol 5, Issue 1). See also, CBS
News, 60 Minutes, September 28, 2003.
44
CBS News, 60 Minutes, September 28, 2003.
25
spring from the more profitable use to which the
latter may devote it.
We find ourselves somewhat at sea, however,
when we undertake to define, in the light of the
judicial decisions, what constitutes a public
use.[45]
Justice COOLEY’S scholarly treatise follows this statement
with a review of judicial decisions from various states
regarding the meaning of “public use” and concludes that
“public use” “has a meaning much controlled by necessity,
and somewhat different from that which it generally
bears.”46
Contrary to the majority’s suggestion, Justice Cooley
does not justify invoking a cadre of legal “sophisticates”
to help ascertain the meaning of “public use,” rather it
reveals that “public use” is indeed a constitutional term
that must be understood not in its “more popular
character,” but rather in “the sense fixed upon the words
in legal and constitutional history where they have been
employed for the protection of popular rights.”47 The sense
45
2 Cooley, Constitutional Limitations (8th ed), p
1129.
46
Id at 1138.
47
1 Cooley, Constitutional Limitations (8th ed), p
132-133. A more “popular” sense of “public use” might be
derived by concluding that the term required the public’s
actual physical use of the land or by combining lay
dictionary definitions of “public” and “use.” These
26
fixed upon the term in legal and constitutional history is,
in Justice COOLEY’S words, “familiar to the people.”48
The facts of each case involving a proposed
condemnation should be considered in light of the “public
use” limitation on the exercise of eminent domain as the
limitation would have been commonly understood by the
people, learned and unlearned, who ratified the
Constitution. This ensures that the “sense fixed upon the
words in the legal and constitutional history” continue to
serve to protect the “popular rights.”49
Contrary to the majority’s suggestion, the people’s
common understanding is not “fictionalized.” Ante at 31, n
48. The people who ratified art 10, § 2 do understand the
limitations they imposed on the exercise of eminent domain.
As stated by Justice Cooley:
it is always an invasion of liberty and of right
when one is compelled to part with his
possessions on grounds which are only colorable.
A person may be very unreasonable in insisting on
retaining his lands; but half the value of free
institutions consists in the fact that they
protect every man in doing what he shall choose,
definitions would not necessarily reflect the full
protections intended by the ratifiers of art 10, § 2 when
they limited the exercise of eminent domain.
48
1 Cooley, Constitutional Limitations (8th ed), p
132.
49
1 Cooley, Constitutional Limitations (8th ed), p
132-133.
27
without liability to be called account for his
reasons or motives, so long as he is doing only
that which he has a right to do. [Ryerson, supra
at 342.]
Nevertheless, the majority substitutes the people’s common
understanding with that of those “sophisticated in the
law.” Apparently, the current majority does not share
Justice COOLEY’S respect for every person’s understanding of
their most basic and established constitutional
protections.
IV. Conclusion
I agree with the majority’s result and its decision to
overrule Poletown. Poletown wrongly abandoned the express
constitutional limitation on the exercise of eminent domain
power when it held that land can be taken by the government
and transferred to a private entity upon the mere showing
that the economy will generally benefit from the
condemnation. For the reasons stated by the majority, I
agree that this decision should apply retroactively. Thus
Wayne County may not condemn the properties of the
defendants at issue.
I dissent from the majority’s reliance on its recently
created and elitist rule of constitutional interpretation
that gives constitutional terms the meaning that those
28
“versed” and “sophisticated in the law” would have given it
at the time of the Constitution’s ratification.
I also dissent from the majority’s application of this
new rule to the facts of this case. While the majority’s
application of its method of interpretation reaches the
correct result in this case, this new rule of
constitutional interpretation perverts the long-established
and primary rule that constitutional terms are to be
interpreted as they are understood by the citizen
ratifiers, the vast majority of whom are not lawyers or
judges and are not “sophisticated in the law.” The
majority’s new rule of constitutional interpretation opens
the door, as Justice Cooley warned, for “interested
subtlety and ingenious refinement” to be forced on the
Constitution’s language—constitutional language that the
people framed and adopted for themselves “as a chart upon
which every man, learned and unlearned, may be able to
trace the leading principles of government.”50
Where a legal and constitutional term is so embedded
in our constitutional law and history and so familiar to
the people as to be commonly understood, this Court should
not redefine it through the eyes of those “sophisticated in
50
1 Cooley, Constitutional Limitations (8th ed), p
131-132.
29
the law,” but should give it the common understanding that
the people who ratified the Constitution would have given
the term.
Elizabeth A. Weaver
CAVANAGH, J.
I concur only with respect to section I.
Michael F. Cavanagh
30
S T A T E O F M I C H I G A N
SUPREME COURT
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124070
EDWARD HATHCOCK,
Defendant-Appellant.
_______________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124071
AARON T. SPECK and DONALD E. SPECK,
Defendants-Appellants.
_______________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124072
AUBINS SERVICE, INC AND DAVID R.
YORK, Trustee of the DAVID R. YORK
REVOCABLE LIVING TRUST,
Defendants-Appellants.
_______________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124073
JEFFREY J. KOMISAR,
Defendant-Appellant.
_______________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124074
ROBERT WARD and LELA WARD,
Defendants-Appellants,
and
HENRY Y. COOLEY,
Defendant.
_______________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124075
MRS. JAMES GRIZZLE and MICHELLE
A. BALDWIN,
Defendants-Appellants,
and
RAMIE FAKHOURY
Defendant.
_______________________________
COUNTY OF WAYNE,
2
Plaintiff-Appellee,
v No. 124076
STEPHANIE A. KOMISAR,
Defendant-Appellant.
_______________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124077
THOMAS L. GOFF, NORMA GOFF, MARK
A. BARKER, JR., and KATHLEEN A. BARKER,
Defendants-Appellants.
_______________________________
COUNTY OF WAYNE,
Plaintiff-Appellee,
v No. 124078
VINCENT FINAZZO,
Defendant-Appellant,
and
AUBREY L. GREGORY and DULCINA
GREGORY,
Defendants.
_______________________________
CAVANAGH, J. (concurring in part and dissenting in part).
3
I concur with the majority that Poletown Neighborhood
Council v Detroit, 410 Mich 616; 304 NW2d 455 (1981),
should be overruled. I also concur with section I of
Justice Weaver’s partial concurrence and partial dissent.
I write separately, however, because I believe that the
analysis offered by Justice Ryan in his dissent in Poletown
offers the best rationale to explain why I believe Poletown
should be overruled. Further, I dissent from the
majority’s conclusion that today’s decision should be
applied retroactively. Contrary to the majority, I would
apply today’s decision prospectively only.
This Court has determined that various factors must be
considered when determining whether a decision should have
retroactive application. In Pohutski v City of Allen Park,
465 Mich 675, 696; 641 NW2d 219 (2002), this Court stated
that these “factors are: (1) the purpose to be served by
the new rule, (2) the extent of reliance on the old rule,
and (3) the effect of retroactivity on the administration
of justice.” This Court also “recognized an additional
threshold question whether the decision clearly established
a new principle of law.” Id. Further, this Court has
adopted a thoughtful approach to retroactivity to minimize
chaos and maximize justice. See Tebo v Havlik, 418 Mich
350, 360, 361, 363; 343 NW2d 181 (1984) (opinion by
4
Brickley, J.; Lindsey v Harper Hosp, 455 Mich 56, 68; 564
NW2d 861 (1997) (“Prospective application of a holding is
appropriate when the holding overrules settled precedent .
. . .”).
The key factors in this case are Wayne County’s
reliance on this Court’s decision in Poletown and the
effect retroactive application will have on Wayne County,
as well as other communities that relied on Poletown. In
brief, Wayne County has spent approximately $50 million on
the project at issue in this case in reliance on this
Court’s decision in Poletown. While I agree with the
majority that Poletown improperly interpreted and applied
the law, Wayne County’s reliance on this Court’s decision
in Poletown is clear and I do not believe that Wayne County
and its taxpayers should be penalized because the county
followed this Court’s guidance.
The majority states that “Wayne County’s course of
conduct in the present case was no doubt shaped by
Poletown’s disregard for constitutional limits on the
exercise of the power of eminent domain and the license
that opinion appeared to grant to state and local
authorities.” Ante at 48 (emphasis added). The Poletown
opinion did not appear to grant power to state and local
authorities, it actually did so. Although we now overrule
5
Poletown because it incorrectly interpreted our
Constitution, there is no doubt that Wayne County’s actions
were a direct result of this Court’s decision in Poletown
and were proper under the reasoning and holding in that
decision.
I understand that prospective application would mean
that defendants must accept just compensation in exchange
for their properties. In an ideal situation, no one,
including defendants, would have to sell property unless
they wanted to sell. However, in examining the factors
that this Court considers when determining whether a
decision should have retroactive application, I cannot
penalize Wayne County and its taxpayers because the county
followed this Court’s prior direction. Therefore, while I
concur with the majority in overruling Poletown, I dissent
with respect to the retroactive application of the
majority’s decision.
Michael F. Cavanagh
Marilyn Kelly
6