City of Oakland v. Oakland Raiders

BIRD, C. J., Concurring and Dissenting.

The power of eminent domain claimed by the City in this case is not only novel but virtually without limit. This is troubling because the potential for abuse of such a great power is boundless. Although I am forced by the current state of the law to agree with the result reached by the majority, I have not signed their opinion because it endorses this unprecedented application of eminent domain law without even pausing to consider the ultimate consequences of their expansive decision. It should be noted that research both by the parties and by this court has failed to disclose a *77single case in which the legal propositions relied on here have been combined to reach a result such as that adopted by the majority.

There are two particularly disturbing questions in this case. First, does a city have the power to condemn a viable, ongoing business and sell it to another private party merely because the original owner has announced his intention to move his business to another city? For example, if a rock concert impresario, after some years of producing concerts in a municipal stadium, decides to move his productions to another city, may the city condemn his business, including his contracts with the rock stars, in order to keep the concerts at the stadium? If a small business that rents a storefront on land originally taken by the city for a redevelopment project decides to move to another city in order to expand, may the city take the business and force it to stay at its original location? May a city condemn any business that decides to seek greener pastures elsewhere under the unlimited interpretation of eminent domain law that the majority appear to approve?

Second, even if a city were legally able to do so, is it proper for a municipality to drastically invade personal property rights to further the policy interests asserted here?

The rights both of the owners of the Raiders and of its employees are threatened by the City’s action. Thus, one unexplored aspect of the majority’s decision is the ruling that contract rights can be taken by eminent domain. The cases relied on by the majority in support of this holding chiefly concerned inverse condemnation suits. Those cases essentially held that when a state condemns a business, the government is obligated to compensate the business owner for the value of the contract rights destroyed by the taking. In this case, the City seeks to condemn employment contracts between the Raiders and dozens of its employees. Can the City acquire personal employment contracts as simply as it can acquire a tract of land? Are an employee’s rights violated by this non-consensual taking of an employment contract or personal services agreement?

At what point in the varied and complex business relationships involved herein would this power to condemn end? In my view, this court should proceed most cautiously before placing a constitutional imprimatur upon this aspect of creeping statism. These difficult questions are deserving of more thorough attention than they have yet received in this litigation.

*78It strikes me as dangerous and heavyhanded for the government to take over a business, including all of its intangible assets, for the sole purpose of preventing its relocation. The decisional law appears to be silent as to this particular question. It appears that the courts have not yet been confronted with a situation such as that presented by this case. However, a review of the pertinent case law demonstrates that decisions as to the proper scope of the power of eminent domain generally have been considered legislative, rather than judicial, in nature. Therefore, in the absence of a legislative bar to the use of eminent domain in this manner, there appears to be no ground for judicial intervention.

The power to take private property through eminent domain has been denominated “one of the indisputable attributes of sovereignty. [Citations.]” (Bauer v. County of Ventura (1955) 45 Cal.2d 276, 282 [289 P.2d 1].) The only specific constitutional limitations on that power appear to be that (1) property must be taken to further a public purpose, and (2) just compensation must be paid to the property owner. (Cal. Const., art. I, § 19; U.S. Const., 14th Amend.; People v. Chevalier (1959) 52 Cal.2d 299, 306 [340 P.2d 598].)

It is well-settled that the judiciary should defer to a legislative determination that a particular usage of property is for a valid public purpose. “Without doubt it is the general rule that where there is any doubt whether the use to which the property is proposed to be devoted is of a public or private character, it is a matter to be determined by the Legislature and the courts will not undertake to disturb its judgment in this regard.” (Con. Channel Co. v. C. P. R. R. Co. (1876) 51 Cal. 269, 273.) Here, it is clear from the case law that “recreation” has been found to be a legitimate public purpose.

In addition, the courts have traditionally refused to examine whether the taking of a particular piece of property is necessary for an asserted public purpose. If the object of the legislative program is properly within the parameters of that body’s authority, questions concerning the proper means used to reach that particular end (what property to take, how much, what to do with the property after it is taken) are generally left to the legislative branch of the government. (See Code Civ. Proc., § 1245.250.) Once again, judicial review is limited. The court may not second-guess the City’s determination that condemnation of the Raiders is “necessary.”

*79In California, the Legislature has narrowly defined court review in this area. Whether a taking is necessary to achieve a public purpose is reviewable only on specific and narrow grounds. (A court may consider only whether a taking (1) reflects a “gross abuse of discretion” (id., § 1245.255, subd. (b)); (2) is arbitrary, capricious, totally lacking in evidentiary support, or in violation of the procedural requirements of the eminent domain law (id., § 1245.255, subd. (a); see Cal. Law Revision Com. com. to Code Civ. Proc., § 1245.255, Deering’s Ann. Code Civ. Proc. (1981 ed.) pp. 101-102); or (3) was the result of bribery (Code Civ. Proc., § 1245.270).)

As a result, the wisdom of the City’s decision here may not be successfully challenged in the courts unless it can be shown that the municipality acted in an arbitrary or capricious fashion, or its act represents a “gross abuse of discretion.” Given this present state of the law, on this limited record, respondents have not demonstrated that there has been a violation of these standards. Unless it can be shown that the City’s decision to use its power of eminent domain in this fashion was completely irrational, there is no relief available for respondents in the courts. Any relief must come from legislatively imposed restrictions.

The court is further constrained because this case is before us on appeal from a dismissal entered after the granting of a motion for summary judgment. On such an appeal, this court must give the benefit of any doubt to the City. Given the far-reaching potential of this decision, a final conclusion as to the legal validity of the City’s action should await a full record and complete factual presentation.

At this stage of the proceedings, there is no constitutional or statutory ground for barring the City’s action. Despite my serious misgivings about the wisdom of the City’s action and the possible future ramifications of a holding that the state has the power to take an ongoing business to prevent it from leaving a particular area, I am constrained by the law to join, albeit reluctantly, the judgment entered here.

Respondents’ petition for a rehearing was denied August 5, 1982. Broussard, J., did not participate therein.