Eminent Domain Abuse in
Outside of Minnesota, state courts have addressed the abuse of takings powers by heightening scrutiny of the exercise of eminent domain under their respective state constitutions.5 But, following Kelo and the split decision affirmations of the cases involving the Walser Auto Dealership and the City of Richfield,6 the question remains: what direction should Minnesota take under Article I, §13 of the Minnesota Constitution?7 Based on the history, language and structure of the Minnesota Constitution, this article will argue that the Minnesota Constitution strictly limits the power of eminent domain when it is used to redistribute private property between private parties. It is now time to clarify what went unanswered when the Minnesota Supreme Court heard the Walser cases.
A Very Brief History
The Northwest Ordinance of
1787, which governed the eastern portion of the
At the time of the Constitutional
Convention of 1857, private property in the
Under the banner of the “legislative prerogative,” the original public exigency justification for eminent domain was eventually vanquished. By 1891, rather than asking whether a taking was “necessary” to address a “public exigency,” Minnesota courts adopted a policy of deference to the “legislative judgment” as to whether the exercise of eminent domain was “expedient” to achieving a “public purpose.”13 With takings no longer restricted to circumstances of public exigency, the legal understanding of what constituted a “public use” was primed for expansion.
The Minnesota Supreme Court first announced that the concept of “public use” was “flexible” in 1896.14 At that time, however, the term was not flexible in the sense of having no fixed meaning whatsoever; rather, it was seen as flexible only as to the kinds of property that could be used as “public facilities for travel or for transmission of intelligence or commodities.” Even in this flexible sense, what constituted a “public use” under the Minnesota Constitution was still limited by the public’s “right to resort to the property for the use for which it is acquired independently of the mere will or caprice of the person or corporation in which the title of the property would vest upon condemnation.”15
For many years, the “flexible” sense of “public use” remained consistent with the usage of the delegates to the 1857 Constitutional Convention, who spoke of publicly accessible highways, canals and railroads being created through condemnation16 and who rejected a constitutional provision that would have permitted lumber companies to declare non-navigable private rivers “rights of way” for lumbering purposes as unfairly preferring one private business over another.17 Property taken through eminent domain simply could not be transferred or leased for exclusive private use under the Minnesota Constitution, regardless of the indirect public benefit of doing so.18 In Schubert v. Town of Rockford,19 for example, the Minnesota Supreme Court held that private property could not be condemned for use as a private drainage ditch. In reaching this holding, the Court reasoned that a private drainage ditch “affects the public only indirectly, as the public may share in the profit of the particular individual” and that “[t]he Legislature cannot by its mere fiat make a private use a public use.” Significantly, this decision led to the proposal of a constitutional amendment in 1915 to permit condemnation of private property to create private drainage ditches,20 which was ultimately rejected by the electorate. This attempt to amend the Minnesota Constitution highlights the fact that, as late as 1915, it was clear that “public use” did not encompass private uses with indirect public benefits.
“Public use” did not become so “flexible” as to encompass private-to-private takings until 1920. This new degree of flexibility was made possible by the new rule of construction that, when the Minnesota Constitution “employs terms which change in definition as conditions change, it refers to them in the sense in which they are meant when the protection of the Constitution is sought.” 21 Based on this new rule and the growing acceptance of zoning laws as a valid exercise of the police power, the Minnesota Supreme Court in State ex rel. Twin City Bldg. & Inv. Co. v. Houghton deemed the use of condemnation to create a restricted residential district a “public use,” even though the condemned property would ultimately be transferred to private parties. A taking resulting in private ownership of the taken property was thus justified by indirect public benefits attributed to private land uses, rather than by the public’s right to access and control the taken property. Implicitly, the Court in Houghton declared that the meaning of “public use” had somehow expanded to encompass the very kind of private-to-private taking that the electorate had already rejected with respect to private drainage ditches a mere five years earlier.
dramatic expansion of the asserted meaning of “public use” remained
largely surreptitious for another 30 years.
However, by 1951, the Minnesota Supreme Court explicitly abandoned
any “public use” test that was premised on the “use of a proposed
structure, facility o
Cutting the Roots
As discussed above, eminent
domain was first transmuted from a rule of necessity founded on public
exigency into a rule of expediency founded upon the legislative prerogative.
Then, after nearly a century of legal wrangling,
the requisite “public use” morphed into a private use that secondarily
benefits the public. In short,
At least one scholar has observed
that the Northwest Ordinance governs the Minnesota Constitution because
it has not been abrogated by the “common consent” of the state and
federal government.26 Significantly,
the Northwest Ordinance expressly contemplates that the stated “fundamental
principles of civil and religious liberty” shall be fixed and established
“as the basis of all laws, constitutions,
and governments, which forever
Given such express language, the civil liberties protected by the Northwest Ordinance, like those of the Magna Carta, should be seen as principles of “fundamental law” secured and not superseded by the Minnesota Constitution. Not surprisingly, recent decisions of the Minnesota Supreme Court reflect a nascent recognition of the fundamentality of the Northwest Ordinance in their constitutional analyses. 29
The limited nature of the takings
power under the Northwest Ordinance sets the appropriate stage for
cutting the roots of eminent domain abuse.
Injected through the “rights and privileges” and “unenumerated
rights” clauses, this “fundamental law” of civil liberty would limit
the exercise of eminent domain to circumstances where “public exigency”
renders it “necessary” for the “common preservation.”
Courts would thereby become constitutionally obligated to do
more than ask whether a proposed taking would be “expedient” to a
“public purpose;” they would need to ask whether a “public exigency”
rendered the proposed taking “necessary” for the “common preservation.”
Viewed from this perspective, only truly extraordinary circumstances
could possibly sustain the asserted “public necessity” of bulldozing
a modest middle-class neighborhood to make way for an ups
The “public exigency” conception
of eminent domain under the Northwest Ordinance should stand as a
bulwark against the abuse of eminent domain.
Nevertheless, the century of hardened jurisprudence that undergirds eminent domain abuse is unlikely to fall from a
Public Use & Private Interests
The original meaning of “public use”
under the Minnesota Constitution required public ownership, control
The Minnesota Constitution is, in fact, structured to prevent public action from being dominated by private economic interests. The prime example of this structural restriction is Article X, section 1 of the Minnesota Constitution — addressing the power of taxation. Courts have construed this provision as requiring that all governmental expenditures be predominantly for a public purpose, stating:
As such, Article X, section 1 of the Minnesota Constitution can be a direct structural limitation on the power of eminent domain: if the alleged public purpose served by a taking is not sufficiently predominant for public funds to be spent constitutionally under Article X, section 1, a constitutional taking involving public funds simply cannot occur.
Even in situations where Article X, section 1 does not function as a direct limitation on private-to-private takings, it is undeniably aimed at preventing public action from primarily serving private interests. In this regard, it is mirrored by the limitation on the use of the credit of the state “in aid of any individual, association or corporation”33 and the prohibition on “special legislation.”34 Indeed, the Minnesota Supreme Court has noted that these various provisions are “closely interrelated” and designed to ensure that the public purpose spending restriction “is safeguarded against indirect erosion.”35 When these provisions are viewed together with the takings clause of Article I, section 13, it is clear that the Minnesota Constitution is deliberately structured to prevent public action from primarily serving private interests. To fit within this constraint, the concept of “public use” under the takings clause cannot be so “flexible” that it permits the primary object of a taking to be the promotion of a private interest.
Of course, the primary benefit
of property ownership is control over the associated bundle of rights. In a private-to-private taking, a private party
is literally the primary beneficiary of the transfer because the private
party captures the most important rights in the bundle — control over
the use and profits of the property.
By contrast, any benefit to the public, such as an increase
in tax revenues or economic growth, is purely an incidental “epiphenomenon.” For this reason, it borders on doublespeak to
declare that the primary object of a private-to-private transfer is
not the promotion of a private interest.
Such a declaration boils down to the rather curious claim that
the promotion of private interests is incidental to the promotion
of public purposes that are themselves being promoted incidentally
by the direct promotion of private interests. As a matter of basic common sense, such assertions
are appropriately viewed with a “skepti
In the final analysis, a concept
of “public use” that is so “flexible” that it effectively requires “great deference” to legislative action
that directly and primarily promotes private interests is completely
alien to the framework of the Minnesota Constitution.37 The point of this observation is not
that a “flexible” conception of “public use” should be retooled in
a Rube Goldberg fashion to accommodate some sort of public purpose
analysis. Rather, the point is that requiring taken property
to actually be used by the public in the sense of public ownership,
The notion that eminent domain
may be exercised by state actors to effect private-to-private takings
in expedient service of freewheeling legislative prerogatives stands
in contradiction of the history, language, structure and amendment
processes of the Minnesota Constitution.
Notwithstanding the current state of the law, the
4 Id. at 19 (stating “[w]e emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power”) (majority opinion).
6 Walser Auto Sales, Inc. v. City of Richfield, 644 N.W.2d 425 (Minn. 2002); Housing and Redevelopment Authority ex rel. City of Richfield v. Walser Auto Sales, Inc., 641 N.W.2d 885 (Minn. 2002); Walser Auto Sales, Inc. v. City of Richfield, 635 N.W.2d 391 (Minn. App. 2001); City of Richfield v. Walser Auto Sales, Inc., 630 N.W.2d 662 (Minn. App. 2001).
8 Quoting Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 310-13 (1795).
9 Northwest Ordinance of 1787, art. II.
Anderson & Albert J. Lobb, A History
of the Constitution of
12 Winona & St. P. R. Co. v. Waldron, 11
13 Fairchild v. City of
v. Great Northern Ry.
Co., 68 N.W. 208, 209 (
15 Minnesota Canal & Power Co. v. Koochiching Co., 107 N.W. 405, 407 (Minn. 1907); see also Minneapolis Gen. Elec. Co. v. City of Minneapolis, 194 F. 215, 223 (D. Minn. 1911).
H. Smith, The Debates and Proceedings of the
18 Sanborn v. Van Duyne, 96 N.W. 41, 43 (
19 114 N.W. 244, 245-46 (
State ex rel. Twin City Bldg. &
Inv. Co. v. Houghton, 176 N.W.
159, 161 (
Thomas v. HRA of Duluth, 48
N.W.2d 175, 185 (
Housing & Redevelopment Auth. of St. Paul v. Greenman, 96 N.W.2d 673, 679 (
24 R.E. Short
25 City of
26 Mary Jane Morrison, The
28 Thiede v.
State v. Hershberger, 462 N.W.2d
393, 399 n.3 (
30 Quoting Houghton, 176 N.W. at 161.
31 Skeen v. State, 505 N.W.2d 299, 314 (
Port Authority of City of St. Paul v. Fisher,
132 N.W.2d 183, 197 (
34 Minn. Const. art XII, §1.
35 City of Pipestone v. Madsen, 178 N.W.2d 594, 598-99 (
This insight belongs to Lee McGrath, executive director of Institute
for Justice —
37 See generally Visina v. Freeman, 89 N.W.2d 635, 647 (1958).
is a staff attorney with the Institute for Justice Minnesota Chapter. Before joining the Institute in 2005, he maintained
a general practice of law in