California Eminent Domain Report

In a thought-provoking article, Anthony F. Della Pelle considers the interesting question of whether the City of Los Angeles could simply take the LA Clippers via eminent domain.  One might typically associate California’s Eminent Domain Law with the taking of land for public utility easements or mass transit projects.  Della Pelle was inspired by an article by Harvey Wasserman, in which Wasserman proposed that the power of eminent domain should be used to take all sports franchises nationwide.  Wasserman reasoned:

The Fifth Amendment says the public has the right to take property with just compensation. It’s called eminent domain. Let’s use it to condemn all [sports] franchises, buy out their owners and have the teams run by the cities, counties and/or states in which they reside, and to which they rightfully belong.

Della Pelle notes that the use of eminent domain to take a sports team would not be novel, particularly in California.  When Al Davis sought to move the Oakland Raiders to Los Angeles in 1982, the city sought to use the power of eminent domain to take ownership of the franchise.  The trial court granted the team’s motion for summary judgment, but in City of Oakland v. Oakland Raiders (1982) 32 Cal. 3d 60, the Supreme Court of California reversed the summary judgment, holding:

• That the taking of intangible property is authorized by state eminent domain law, particularly given that Code of Civil Procedure § 1235.170 defines property that may be taken by eminent domain as including real and personal property and any interest therein.
• That the acquisition and operation of a sports franchise may be an appropriate municipal function constituting a valid public use for the taking.

Della Pelle analyzes important issues in considering the power of eminent domain to take a sports franchise for the public use, including:

• whether other legal obstacles, such as the Dormant Commerce Clause, prohibit the taking;
• the difficulty in valuing sports franchises to determine the just compensation to be paid to the owners for the taking; and
• policy considerations, such as whether in particular cases like those surrounding the Clippers and the Redskins, which were singled out in Wasserman’s article, the taking would violate the freedom of speech guaranteed by the First Amendment of the Constitution.

Though not directed to a topic that regularly confronts eminent domain proceedings, Della Pelle’s article is highly informative and thought provoking, as is Wasserman’s article.  Both are recommended reading for anyone interested in eminent domain law.