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SECTION NEWS
Condemnation Committee Off to Fast Start
The newly created Condemnation Committee got off to a fast start at its initial meeting, which was held on March 26, 2004, in New Orleans. The event, part of the State and Local Government Law Section's annual Spring Meeting, featured a "Condemnation Law Update" session at which presentations were made by the committee's co-chairs, Darius Dynkowski and Steven J. Eagle. Section members interested in the work of the committee also discussed appropriate topics for committee activities.
The session began with a summary of recent developments in the law of "public use" pertaining to the exercise of eminent domain for redevelopment purposes by Professor Eagle. Condemnation long has been used for the redevelopment of blighted neighborhoods by private firms. Even the condemnation of parcels containing sound structures was approved for this purpose by the U.S. Supreme Court in Berman v. Parker, 348 U.S. 26 (1954). The Court's other major case in this area, Hawaii Hous. Auth. v. Midkiff, declared that the "'public use' requirement is . . . coterminous with the scope of a sovereign's police powers." 467 U.S. 229, 240 (1984). More recently, however, a number of high-profile cases have held that condemnations ostensibly for public use really were primarily for the benefit of the private businesses that acquired the land subsequent to condemnation. These include Southwestern Illinois Dev. Auth. v. National City Envtl., L.L.C., 768 N.E.2d 1 (Ill. 2002), in which a raceway wanted to acquire the land of an adjoining recycling company to build additional parking, and 99 Cents Only Stores v. Lancaster Redev. Agency, 237 F. Supp. 2d 1123 (C.D. Cal. 2001), in which the public agency acquired the land of a competitor apparently at the behest of the Costco chain.
Mr. Dynkowski discussed the well-known case of Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981), in which General Motors acquired an area formerly containing a close-knit ethnic neighborhood of 1,600 homes for a new assembly plant. He spoke about the decision of the Michigan Supreme Court, in County of Wayne v. Hathcock, 671 N.W.2d 40 (Mich. 2003), to review its earlier holding. The court has asked the parties to brief whether a decision to overrule Poletown should be of retroactive, as well as prospective, application. The possible overturning of Poletown is of immense importance, because that case has become emblematic of large-scale condemnation to revive a city's economic base.
During the ensuing discussion, members discussed the importance of the "public use" debate and also suggested a number of other topics that the committee should consider. These included the condemnation of easements for airport flight paths and for scenic views; precondemnation blight, by which government announcements and actions substantially reduce the value of parcels before their formal condemnation; and the clash among units of government that might want to exercise their powers of eminent domain inconstantly. Section members interested in the Condemnation Committee's work are urged to join the committee. Join the committee online at www.abanet.org/statelocal/commpref.html or fax a request to join to Alice Bare's attention at 312/988-5121.
Homeland Security at the ABA Annual Meeting
The Section's Homeland Security and Emergency Management Committee is co-sponsoring three programs at the ABA's upcoming Annual Meeting in Atlanta:
Friday, August 6, 2:00 to 4:30 p.m.
Co-sponsored with the Section of Administrative Law and Regulatory Practice.
This program will review ways and means of keeping government accountable in the new homeland security environment, covering conflicts between secrecy and anti-terrorism efforts, on the one hand, and privacy and public openness on the other. The general counsel of the Department of Homeland Security, Joe Whitley, is the keynote speaker on a program featuring panelists from a variety of perspectives. Ernie Abbott, chair of the Section's Homeland Security Committee, will discuss some of the challenges faced by state and local governments in interacting with the new department.
Saturday, August 7, 9:30 to 11:30 a.m.
Co-sponsored with the Section of Public Utility, Communications and Transportation Law.
Much of the critical infrastructure of the United States is privately owned and operated; other critical facilities are operated by governments, public authorities, and nonprofit organizations such as electric cooperatives. This panel will explore the respective roles and responsibilities of government and industry to prevent and mitigate attacks on infrastructure targets, the legal aspects of countermeasures, and how the costs of these efforts should be allocated.
Saturday, August 9, 9:30 a.m. to 12:00 noon.
Co-sponsored with the Section of Science & Technology Law.
This program will focus on the real risks of communicable diseases and bio-terrorism-and what lawyers must know to prepare themselves and their clients. Dr. Julie Gerberding, director of the Centers for Disease Control (CDC), will describe the 2003 global SARS outbreak: the scientific investigation, the outbreak management and massive quarantine (particularly in Toronto and in Asia), the loss of life, and the business and tourism disruptions. A high-profile panel of corporate counsel, public health officials, and an ethicist will then connect this world-changing event to the new legal requirements and duties expected of both the public and private sector business and employer. Topics include the webs of federal and state jurisdictional enforcement and public health powers; requirements for disease reporting; the private sector client's duty to warn and isolate or quarantine employees, customers, and visitors; the management of potential liability associated with failure to act; the potential seizure or quarantine of clients' products and services; curtailment of travel and public gatherings; the new demands forensic epidemiology imposes on the business; and the attendant privacy and civil liberty concerns.