Eminent Domain Extremism Runs Into Judicial Brick Wall

Grosse Ile Bridge

At last, the nation’s judiciary may be starting to come around to the correct – and Constitutional – position on governmental abuse of the powers of eminent domain. It’s only fitting that the turnaround began with a Michigan court, given that it was an overreach by this state’s Supreme Court, in the infamous 1981 Poletown case, which lurched the nation in the wrong direction more than 20 years ago.

When Michigan Circuit Court Judge Susan Borman recently barred the Township of Grosse Ile from seizing the privately owned toll bridge that serves the island, she not only stopped a power-hungry band of local supervisors from grabbing something that didn’t belong to them. She also slapped the township board with a strong rebuttal of nearly every single argument that their attorneys put forward for why Grosse Ile should control a valuable service that has been operating in exemplary fashion under the ownership of the Smoke family since 1913.

The Smokes have operated the bridge in a public spirit all along, charging only a modest toll (as little as 75 cents), allowing emergency traffic to traverse free of charge, making significant improvements as necessary over the decades, and promising even more steps to ensure smooth service when Wayne County embarks on significant repairs of its own bridge – which provides the only other automotive access to the island – over the next couple of years. In her opinion, Judge Borman said that it would be very difficult for any other entity, especially a public one, to run the bridge better.

But Judge Borman went much further than that, delivering a stinging rebuke to a governmental body that couldn’t show a public necessity for its takeover of the bridge. Grosse Ile argued that the upcoming closure of the county bridge for repairs, for a few hours every few weeks over the course of the next two years, constituted one good reason to allow it to take the Smokes’ bridge. But the judge noted that the Smokes were “in the process of implementing improvements to the Toll Bridge that would reduce, to the extent possible, traffic congestion.” And in any event, such a problem at most would argue for a temporary government takeover of the bridge – not a permanent seizure.

Well, Grosse Ile’s board said, the island’s “public health, safety and welfare” depended on the county’s being able to “control” the Smokes’ bridge, because a large percentage of emergency traffic utilizes the bridge. To that assertion, Judge Borman basically said that just because the township board stated a “need” didn’t mean one existed. The Smokes were operating the bridge for emergency purposes just fine, she said.

OK, if you’re not buying that, Grosse Ile argued, what about the fact that the island’s population may grow in the future? The judge countered that only “minimal population growth” is anticipated by the township’s own master plan. And in any event, more people on the island in no way would justify acquiring the privately owned bridge.

Finally, the township argued, it would have access to federal and state funds for repairing and maintaining the bridge that the Smokes couldn’t obtain. “The Toll Bridge was not in a state of disrepair,” Judge Borman said. “Nor was there evidence that the defendant lacked the funds or access to funds necessary for the upkeep of the Toll Bridge.”

And implicitly, Judge Borman seemed to agree with the opinion of one state Supreme Court judge who dissented in the 1981 Poletown ruling, in which the City of Detroit was allowed to condemn a residential area known as “Poletown” to make way for a new General Motors Corp. plant. Dozens of families lost their homes, but only about half of the promised jobs ever materialized. In the dissenting opinion in 1981, the judge argued that encouraging governmental bodies to use the principle of “public benefit” in the use of eminent domain, as Detroit did with Poletown, would encourage abuse because such a standard has “no internal limit.”

The Poletown ruling is currently being reviewed by the state Supreme Court. There is good reason to believe that this Court respects private property enough to want to undo the sweeping power the 1981 Court granted to government for seizing private property for something other than a genuinely “public” purpose. Judge Borman’s strong opinion in the Grosse Ile bridge case should help.

Dale Buss is an adjunct scholar with the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Michigan. Permission to reprint in whole or in part is hereby granted, provided the author and his affiliation are cited.