Wayne County v. Hathcock

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