Elements common to embezzlement are as follows: 1 the property must belong to a person other than the accused, such as an employer or principal; 2 the property must be converted subseque
Trang 1which entails a complete relinquishment of the
right to the care, custody, and earnings of such
child, and a repudiation of parental obligations
The emancipation may be express—pursuant to
a voluntary agreement between parent and
child—or implied from conduct that denotes
consent It may be absolute or conditional, total
or partial A partial emancipation disengages a
child for only a portion of the period of
minority, or from only a particular aspect of
the parent’s rights or duties
There is no determinate age when a child
becomes emancipated; it usually, but not
automatically, occurs upon the attainment of
theAGE OF MAJORITY
CROSS REFERENCE
Parent and Child.
EMANCIPATION PROCLAMATION
The Emancipation Proclamation, formally
is-sued on January 1, 1863, by PresidentABRAHAM
LINCOLNis often mistakenly praised as the legal
instrument that ended slavery—actually, the
THIRTEENTH AMENDMENT to the Constitution,
ratified in December 1865, outlawed SLAVERY
But the proclamation is justifiably celebrated as
a significant step toward the goal of ending
slavery and making African Americans equal
citizens of the United States Coming as it did in
the midst of the Civil War (1861–65), the
proclamation announced to the CONFEDERACY
and the world that theABOLITIONof slavery had
become an important goal of the North in its
fight against the rebellious states of the South
The document also marked a shift in Lincoln’s
mind toward support for emancipation Just
before signing the final document in 1863,
Lincoln said, “I never, in my life, felt more
certain that I was doing right than I do in
signing this paper.”
In the text of the proclamation—which is
almost entirely the work of Lincoln himself—
Lincoln characterizes his order as “an act of
justice, warranted by the Constitution upon
military necessity.” These words capture the
essential character of Lincoln’s work in the
document On the one hand, he perceived the
proclamation as a kind of military tactic that
would aid the Union in its difficult struggle
against the Confederacy As such, it was an
extraordinary measure that carried the force of
law under the powers granted by the
Constitution to the president as commander
in chief of the U.S military forces But on the other hand, Lincoln saw the proclamation as
“an act of justice” that announced the intention
of the North to free the slaves In this respect, it became an important statement of the intent to abolish slavery in the United States once and for all, as well as a vital symbol of human freedom
to later generations
Lincoln had not always regarded emancipa-tion as a goal of the Civil War In fact, he actively resisted emancipation efforts early in the war, as when he voided earlier emancipation proclamations issued by the Union generals John C Frémont and David Hunter in their military districts Lincoln also failed to enforce provisions passed by Congress in 1861 and 1862 that called for the confiscation and emancipa-tion of slaves owned by persons supporting the rebellion
Antislavery sentiment in the North, how-ever, grew in intensity during the course of the Civil War By the summer of 1862, with the Union faring poorly in the conflict, Lincoln had begun to formulate the ideas he would eventu-ally express in the proclamation In particular,
he reasoned that emancipation would work to the military advantage of the North by creating
a labor shortage for the Confederacy and providing additional troops for the Union
While Lincoln was increasingly sympathetic to abolitionists who wished to end slavery, he was reluctant to proclaim emancipation on a wider scale, out of fear that it would alienate the border slave states of Kentucky, Maryland, and Missouri, which had remained part of the Union Already stung by military setbacks, Lincoln did not want to do anything to jeopardize the ultimate goal of victory in the war Even if he had wished to proclaim emancipation on a wider scale, such an act probably would not have been constitutionally legitimate for the presidency
Lincoln’s cabinet was nervous about the effect of issuing the proclamation, and it advised him to wait until the Union had won a major victory before releasing it As a result, the president announced the preliminary procla-mation on September 22, 1862, five days after the Union victory at the Battle of Antietam In language that would be retained in the final version of the proclamation, this preliminary order declared that on January 1, 1863, all the
EMANCIPATION PROCLAMATION 129
Trang 2slaves in the parts of the country still in rebellion “shall be … thenceforward and forever, free.” It also pledged that “the executive government of the United States, including the military … will recognize and maintain the freedom” of ex-slaves But this preliminary proclamation also contained language that was not included in the final document For example, it recommended that slave owners who had remained loyal to the Union be compensated for the loss of their slaves
The final version of the proclamation specified the regions still held by the Confeder-acy in which emancipation would apply: all parts of Arkansas, Texas, Mississippi, Alabama, Florida, Georgia, South Carolina, and North Carolina, and parts of Louisiana and Virginia It also asked that freed slaves “abstain from all violence” and announced that those “of suitable condition will be received into the armed service of the United States.” This last provision led to a significant practical effect of the proclamation: By 1865, more than 190,000 African Americans had joined the U.S ARMED SERVICESin the fight against the Confederacy
News and copies of the proclamation quickly spread through the country, causing many people, especially African Americans, to celebrate At one gathering, the African
American abolitionistFREDERICK DOUGLASS made
a speech in which he pronounced the procla-mation the first step on the part of the nation in its departure from theSERVITUDEof the ages In following years, many African Americans would continue to celebrate the anniversary of the signing of the proclamation
However, many abolitionists were dis-appointed with the limited nature of the proclamation They called for complete and immediate emancipation throughout the entire country, and they criticized the proclamation as the product of military necessity rather than moral idealism
Although the practical effects of the procla-mation were quite limited, it did serve as an important symbol that the North now intended not only to preserve the Union but also to abolish the practice of slavery For Lincoln, the proclamation marked an important step in his eventual support of complete emancipation Later, he would propose that the REPUBLICAN PARTY include in its 1864 platform a plank calling for the abolition of slavery by CONSTITU-TIONAL AMENDMENT, and he would sign the Thirteenth Amendment in early 1865
The copy of the proclamation that Lincoln wrote by hand and signed on January 1, 1863, was destroyed in a fire in 1871 Early drafts and
This engraving depicts
the first reading of the
Emancipation
Proclamation before
President Abraham
Lincoln’s cabinet in
1862.
LIBRARY OF CONGRESS
Trang 3copies of the original, including the official
government copy derived from Lincoln’s own,
are held at the National Archives, in
Washing-ton, D.C
FURTHER READINGS
Franklin, John Hope 1995 The Emancipation Proclamation.
Arlington Hts, IL: Harlan Davidson.
Guelzo, Allen C 2006 Lincoln’s Emancipation Proclamation:
The End of Slavery in America New York: Simon &
Schuster.
Klingaman, William K 2001 Abraham Lincoln and the Road
to Emancipation, 1861–1865 New York: Viking.
Levinson, Sanford 2001 “Was the Emancipation
Pro-clamation Constitutional? Do We/Should We Care
What the Answer Was? ” Univ of Illinois Law Review
(October).
The Emancipation Proclamation: Milestone Documents in the
National Archives 1993 National Archives and Records
Administration.
CROSS REFERENCE
“Emancipation Proclamation ” (Appendix, Primary
Document).
EMBARGO
A proclamation or order of government, usually
issued in time of war or threatened hostilities,
prohibiting the departure of ships or goods from
some or all ports until further order Government
order prohibiting commercial trade with
indivi-duals or businesses of other specified nations Legal
prohibition on commerce
The temporary or permanent sequestration of
the property of individuals for the purposes of a
government, e.g., to obtain vessels for the transport
of troops, the owners being reimbursed for this
forced service
EMBARGO ACT
A legislative measure enacted by Congress in 1807
at the behest of President Thomas Jefferson that
banned trade between U.S ports and foreign
nations
The Embargo Act was intended to use
economic pressure to compel England and
France to remove restrictions on commercial
trading with neutral nations that they imposed
in their warfare with each other Napoleon
decreed under his Continental system that no
ally of France or any neutral nation could trade
with Great Britain, in order to destroy the
English economy In retaliation, England caused
a blockade of the northern European coastline,
affecting nations that had remained neutral in
the dispute between France and England These vindictive measures hurt neutral American traders, prompting Congress to take action
to safeguard the economic interests of the United States The first enactment was the Nonimportation Act of 1806 (2 Stat 379), which prohibited the import of designated English goods to stop the harsh treatment of American ships caught running the blockade
The Embargo Act of 1807 (2 Stat 451) superseded this enactment and expanded the prohibition against international trade to all nations A later amendment in 1809 (2 Stat
506) extended the ban from American ports to inland waters and overland transactions,
there-by stopping trade with Canada, and mandated strict enforcement of its provisions
The American public opposed the act, particularly those segments dependent upon international trade for their livelihoods This opposition eventually led to the enactment of the Non-Intercourse Act (2 Stat 528 [1809]), which superseded the stringent provisions of the Embargo Act Under that act, only trade with England and France was proscribed, but the measure was ineffectual
Subsequently, in 1810 Nathaniel Macon proposed a measure, called Macon’s Bill No 2, which Congress enacted despite solid Federalist opposition, that empowered the president to resume commerce with the warring nation that lifts its restrictions on neutral trade
EMBEZZLEMENT The fraudulent conversion of another’s property
by a person who is in a position of trust, such as
an agent or employee
Embezzlement is distinguished from swin-dling in that swinswin-dling involves wrongfully obtaining property by a false pretense, such as
a lie or trick, at the time the property is transferred, which induces the victim to transfer
to the wrongdoer title to the property
Nature There was no crime of embezzlement under the COMMON LAW It is a statutory crime that evolved fromLARCENY Whereas larceny requires
a felonious trespassory taking of property at the outset, embezzlement is a wrongful appropria-tion subsequent to an originally lawful taking
Embezzlement is, therefore, a modification of
EMBEZZLEMENT 131
Trang 4larceny designed to cover certain fraudulent acts that do not come within its scope Although they are mutually exclusive crimes, larceny and embezzlement do overlap slightly under statutes
in some states
Embezzlement was created by the English legislature, which designated specific persons who might be liable for the offense These were essentially persons entrusted with another’s pro-perty, such as agents, attorneys, bankers, and corporate officers
The English definition of the offense is followed in the United States Statutes do not usually list the persons who might be liable but, instead, generally describe the offender as a person entrusted with, or in possession of, another’s property
Property The type of property that must be converted is governed by statute Generally, property is defined as including money, goods, chattels,
or anything of value Intangible PERSONAL PROPERTY; COMMERCIAL PAPER, such as checks, promissory notes, bonds, or stocks; and written documents, such as deeds or contracts, may also
be the subject of embezzlement
Under some statutes, property consists of anything that can be the subject of larceny In other states, however, the property requirement for embezzlement is broader For example, the statute might punish the conversion of both real and personal property
In some states, the embezzlement of public property or public funds is a separate offense The offense is characterized by the manner in which the money is received A court clerk who receives bail money is a recipient of public money and the person can be liable if such money is wrongfully converted by him or her The property subject to embezzlement must have some value, even though value is not an element of the offense Although a check without a required endorsement does not have value, the fact that the endorsement can be forged gives it sufficient value to make it a subject of embezzlement
Elements Statutes governing the offense vary widely throughout the states To determine exactly what elements comprise the offense, it is necessary to examine the particular statute applicable Elements common to embezzlement are as follows: (1) the property must belong to a person other than the accused, such as an employer or principal; (2) the property must be converted subsequent to the defendant’s origi-nal and lawful possession of it; (3) the
DEFENDANT must be in a position of trust, so that the property is held by him or her pursuant
to some fiduciary duty; and (4) the defendant must have an intent toDEFRAUDthe owner at the time of the conversion
Ownership The principal or employer must be the owner of the property embezzled by an agent or employee at the time the offense is committed Under many statutes, the owner-ship requirement is expressed as the property of another It is sufficient if any person, other than the defendant, owns the property and it does not matter who has title to it or that it is owned
by more than one person
Jurisdictions differ on the question of whether a person can embezzle funds belonging
to a spouse In states that retain the spousal privilege, a person can be prevented from testifying to a crime against a spouse; therefore, spousal embezzlement will not be prosecuted Unless a statute provides otherwise, co-owners of property, such as joint tenants or tenants in common, cannot be guilty of the offense with respect to the property that is jointly owned A co-owner who wrongfully transfers jointly owned property converts his or her own property as opposed to that of another;
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PER-MISSION OF GALE, A
PART OF CENGAGE
LEARNING.
SOURCE: FBI, Crime in the United States, 2007.
Persons Arrested for Embezzlement by Age,
2007
55 and over 2.5%
45–54 years old 9.3%
Under 18 years old 7.6%
18–24 years old 38.7%
25–44 years old 41.9%
Trang 5therefore, there is no conversion If a person has
any interest in property held jointly with
another, the person cannot be convicted of the
offense relating to that property For example, a
co-owner of an automobile cannot be guilty of
embezzling it if both owners have an equal right
to possession A number of states, however,
have statutes punishing embezzlement by
co-owners, such as partners who wrongfully
con-vey partnership assets
In most states, an agent authorized to collect
money for his or her principal and to keep a
certain amount as commission is guilty of
embezzlement if he or she wrongfully transfers
the entire sum collected
Possession or Custody of Property
Posses-sion is the essential element for distinguishing
between embezzlement and larceny While
larceny requires that the thief take the property
out of the victim’s possession, the person must
lawfully possess the property at the time that it
is converted for embezzlement
It is not necessary for the defendant to have
physical or exclusive possession It is sufficient if
the person has constructive possession, a form
of possession that is not actual but that gives the
holder power to exercise control over the
property either directly or through another
person Alternatively, mere custody is
insuffi-cient for embezzlement If a master puts a
servant in charge of property for purposes of
guarding or caring for it, the master is
considered to have constructive possession of
such property while the servant has mere
custody A servant who wrongfully converts
property over which he or she has custody may
be guilty of larceny, but not embezzlement
The fact that an accused person lawfully
receives property at different times will not
negate an embezzlement charge provided all
other elements of the offense are met
Trust Relationship Because the offense is
aimed at punishing persons who convert
property for their own use when possession is
lawfully acquired, prosecution is limited to
instances where the parties are in a fiduciary,
or trust, relationship
Generally, a debtor and a creditor, or an
agent and a broker, do not have a fiduciary
relationship sufficient for the offense There
must be some further indication that one
person has a duty to care for and exert some
control over the other’s property The most common type of trust relationships are those existing among corporate officers, partners, and employers and their employees
Conversion of Property Conversion is an act that interferes with an owner’s right of possession to his or her property For purposes of embezzlement, con-version involves an unauthorized assumption of the right of ownership over another’s property
It may, for example, occur when a person is entrusted with property for one purpose and uses it for another purpose without the consent
of the owner Generally, any type of conversion that occurs after a person obtains lawful possession of property is sufficient
Although a failure to return property is evidence of conversion, it does not necessarily constitute embezzlement—absent proof of criminal intent However, if a statute imposes
an absolute duty to return property, the failure
to do so is embezzlement, provided all other elements are met
In certain circumstances, a demand is required before a person can claim that his or her property has been converted Usually, no demand is required if it would be futile, such as when an accused has fled the jurisdiction with the property If, however, there is no definite time specified for the return of the property, a demand might be necessary The demand is merely a request that the wrongdoer return the property The request does not have to be formal, and there is no requirement that the word demand be used
When an agent is given authority to sell property and thereafter converts the proceeds of the sale, he or she is guilty of embezzlement of the proceeds, as distinguished from the property sold A person with authority to cash a check but who converts the cash is, likewise, guilty of embezzlement of the cash and not of the check
The person, might, however, be guilty of embezzling the check if at the time of cashing
it, the person has a fraudulent intent to convert it
Intent In a majority of jurisdictions, a fraudu-lent intent to deprive the owner of his or her property is necessary for embezzlement It is characterized as intent to willfully and corruptly use or misapply another’s property for purposes other than those for which the property is held
EMBEZZLEMENT 133
Trang 6The defendant’s motive is not relevant to the intent element
Although it is not essential that the intent exist at the time possession is first taken, it must
be formed at the time the property is converted
The offense is not committed if there is an intent to return the specific property taken within a reasonable period of time If, however, there is a fraudulent intent at the time the property is converted, a subsequently formed intent to return the property will not excuse the crime An offer to restore the property will not bar a prosecution for embezzlement Some courts have held, however, that an offer of restoration can be considered on the question
of intent
A person who believes that the property to
be transferred is his or hers is considered to act pursuant to a claim of right The possibility that the belief is mistaken, or unreasonable, is not important If one has a GOOD FAITH belief that one has a right to withhold property or devote it
to one’s own use, the conversion cannot be fraudulent, and there is no embezzlement
The validity of a claim of right is aQUESTION
OF FACT determined from CIRCUMSTANTIAL EVI-DENCE It is not sufficient if the person merely states he or she acted honestly If circumstances evince that there was a willful and knowingly wrongful taking, a claim of right defense will not succeed
Persons Liable One or more persons may be guilty of embezzlement If there is a conspiracy to embezzle, parties to the agreement are liable as principals A person who aids and abets in the conversion can also be guilty of the offense
Punishment Because the offense is defined differently in several jurisdictions, the punishment for em-bezzlement can vary Generally, the penalty is a fine, imprisonment, or both
Some states distinguish between grand embezzlement and petit embezzlement on the basis of the value of the property stolen The former involves property of a greater value and
is punishable as a felony, while the latter involves property of a lesser value and is punishable as a misdemeanor
FURTHER READINGS Frazer, Douglas H 2002 “To Catch a Thief: Civil Strategies for Handling Embezzlement Cases ” The Wisconsin Lawyer 75 (February) Available online at http://www wisbar.org/AM/Template.cfm?Section=Wisconsin_ Lawyer&TEMPLATE=/CM/ContentDisplay.cfm& CONTENTID=50234; website home page: http://www wisbar.org (accessed July 21, 2009).
Johnson, J A., Jr 2000 Thief: The Bizarre Story of Fugitive Financier Martin Frankel New York: Lebhar-Friedman Kahl, Leah A., and Peter C Ismay 1998 “Exceptions to Discharge of Fiduciary Fraud, Larceny, and Embezzle-ment ” Journal of Bankruptcy Law and Practice 7 (January-February).
McClintick, David 2002 Indecent Exposure: A True Story
of Hollywood and Wall Street New York: Harper Paperbacks.
CROSS REFERENCES Fiduciary; Fraud; Joint Tenancy; Larceny; Tenancy in Common.
EMBLEMENTS Crops annually produced by the labor of a tenant Corn, wheat, rye, potatoes, garden vegetables, and other crops that are produced annually, not spontaneously, but by labor and industry The doctrine of emblements denotes the right of a tenant to take and carry away, after the tenancy has ended, such annual products of the land as have resulted from the tenant’s care and labor
EMBRACERY The crime of attempting to influence a jury corruptly to one side or the other by promises, persuasions, entreaties, entertainments, and the like The person guilty of it is called an embraceor This is both a state and federal crime, and is commonly included under the offense of obstructing justice
In order for the offense of embracery to be committed, it is essential that the accused individual have an improper intent If an individual makes statements that would be likely to influence the VERDICT of a juror while the individual is unaware that such juror is present, such conduct is not embracery
It is not generally a prerequisite for the juror
to have been impaneled and sworn, provided the person’s name has been drawn and published as a juror or grand juror
The intent to influence a juror must be coupled with an attempt to use improper influence, which can be through word or conduct and is the onlyOVERT ACTnecessary The juror can
Trang 7either be approached personally by the individual
or through an agent Words intended to influence
a juror need not be spoken to the person directly
but can be communicated in a manner designed
to be overheard by the juror and prejudice his or
her decision
A party to the action, an individual
undergoingGRAND JURY investigation, a witness,
or an individual who has no connection with
the proceeding can be charged with embracery
Because the crime of embracery itself only
constitutes an attempt, there is no such crime as
the attempt to commit embracery It is, however,
a crime to solicit another to commit embracery
Embracery is punishable by a fine,
imprison-ment, or both, depending upon statute
EMBRYONIC STEM CELL RESEARCH
SeeFETAL TISSUE RESEARCH
EMERGENCY DOCTRINE
A principle that allows individuals to take action
in the face of a sudden or urgent need for aid,
without being subject to normal standards of
reasonable care Also called imminent peril
doctrine, or sudden peril doctrine
The emergency doctrine allows people to act
in critical situations that call for quick action—a
fire, an automobile crash, a collapsing building—
without danger of recrimination An example of
someone who might be covered under the
emergency doctrine is a person who performs
cardiopulmonary resuscitation on a heart attack
victim and in so doing breaks several of the
victim’s ribs Another example is when a driver,
surprised by a pedestrian who steps out from
between two parked cars, swerves to miss the
pedestrian but then hits another car
The emergency doctrine also covers
situa-tions in which an individual acted inGOOD FAITH
when disaster seemed imminent even though
ultimately it was not There is, however, a fine
distinction between the emergency doctrine and
the RESCUE DOCTRINE, which requires that one
who places a person in peril or in a situation
with the appearance of imminent peril owes a
duty of reasonable care to one attempting to
rescue the person from the peril or appearance
of peril In Harris v Oaks Shopping Center, Cal
App 4th 206 (1999), a sand sculpture being
installed in a mall appeared to be about to
collapse Harris, a mall employee, rushed over
to push a woman and her small child out of the way In his rush, he fell and injured his back He filed suit, but the jury found that because the sculpture did not fall, there was no imminent danger; moreover, there was no evidence of
NEGLIGENCE on the part of the mall or the sand sculptors Harris appealed, stating that the jury should have been instructed that because he acted
on what he saw as an imminent threat, he had
no obligation to prove actual negligence He reasonably believed that the sculpture was about
to collapse The appellate court agreed and sent the case back to trial court for a new trial, in which the jury was to consider whether Harris acted reasonably under the circumstances The court did, however, note that it was the rescue doctrine that applied in this case because the plaintiff’s injuries stemmed from the attempted rescue, not an actual collapsed structure
FURTHER READINGS Alexander, Ken, and Eric Wade “Companies Prepare to Overcome Legal, Physical Effects of Disaster ” Houston Business Journal (October 26, 2001) Available online at http://houston.bizjournals.com/houston/stories/2001/
10/29/focus3.html; website home page: http://houston.
bizjournals.com (accessed July 21, 2009).
Bradley, Craig M 2006 “A Sensible Emergency Doctrine.”
Trial 42 (August 1).
Pedestrian Injury Legal Info Center Available online at http://www.pedestrianinjury.com (accessed July 21, 2009).
CROSS REFERENCE Good Samaritan Doctrine.
EMIGRATION The act of moving from one country to another with intention not to return It is to be distinguished from expatriation, which means the abandonment
of one’s country and renunciation of one’s citizen-ship in it, while emigration denotes merely the removal of person and property to another country
Expatriation is usually the consequence of emigra-tion Emigration is also sometimes used in reference
to the removal from one section to another of the same country
EMINENT DOMAIN Eminent domain is the power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property
EMINENT DOMAIN 135
Trang 8Federal, state, and local governments may take private property through their power of eminent domain or may regulate it by exercis-ing theirPOLICE POWER TheFIFTH AMENDMENTto the U.S Constitution requires the government
to provideJUST COMPENSATIONto the owner of the private property to be taken A variety of property rights are subject to eminent domain, such as air, water, and land rights The government takes private property through condemnation proceedings Throughout these proceedings, the property owner has the right of due process
Eminent domain is a challenging area for the courts, which have struggled with the question of whether the regulation of property, rather than its acquisition, is a taking requiring just compensation In addition, private property owners may also initiate actions against the government in a kind of proceeding called inverse condemnation
History The concept of eminent domain has existed since biblical times, when King Ahab of Samaria offered Naboth compensation for Naboth’s vineyard In 1789, France officially recognized
a property owner’s right to compensation for taken property, in the French Declaration of the Rights of Man and of the Citizen, which reads,
“Property being an inviolable and sacred right
no one can be deprived of it, unless the public necessity plainly demands it, and upon condi-tion of a just and previous indemnity.” Shortly after the French declaration, the United States acknowledged eminent domain in the Fifth Amendment to the Constitution, which states,“… nor shall private property be taken for public use, without just compensation.” The Fifth Amendment grants the federal government the right to exercise its power of eminent domain, and the due process clause of the FOURTEENTH AMENDMENT makes the federal
Emigration is the act
of leaving one’s
country to live
somewhere else These
men emigrated from
Italy to the United
States in 1911.
LIBRARY OF CONGRESS
Trang 9guarantee of just compensation applicable to
the states State governments derive the power
to initiate condemnation proceedings from
their state constitutions, with the exception of
North Carolina, which gains its power through
statute The constitutional and statutory
provi-sions require federal, state, and local
govern-ments and subdivisions of government to pay
an owner for property taken for public use at
the time the property is taken
The power of eminent domain was created
to authorize the government or the condemning
authority, called the condemnor, to conduct a
compulsory sale of property for the common
welfare, such as health or safety Just
compen-sation is required, to ease the financial burden
incurred by the property owner for the benefit
of the public
Elements of Eminent Domain
To exercise the power of eminent domain, the
government must prove that the four elements
set forth in the Fifth Amendment are present:
(1) private property (2) must be taken (3) for
public use (4) and with just compensation
These elements have been interpreted broadly
Private Property The first element requires
that the property taken be private Private
property includes land as well as fixtures, leases,
options, stocks, and other items The rifle that
was used to kill PresidentJOHN F.KENNEDY was
considered private property in an eminent
domain proceeding
Taking The second element refers to the taking
of physical property, or a portion thereof, as
well as the taking of property by reducing its
value Property value may be reduced because of
noise, accessibility problems, or other agents
Dirt, timber, or rock appropriated from an
individual’s land for the construction of a
highway is taken property for which the owner
is entitled to compensation In general,
com-pensation must be paid when a restriction on
the use of property is so extensive that it is
tantamount to confiscation of the property
Some property rights routinely receive
constitutional protection, such asWATER RIGHTS
For example, if land is changed from waterfront
to inland property by the construction of a
highway on the shoreline, the owners of the
affected property are to be compensated for
their loss of use of the waterfront
AnotherPROPERTY RIGHTthat is often litigated and routinely protected is the right to the reasonable and ordinary use of the space above privately owned land Specifically, aircraft flights over private property that significantly interfere with the property owner’s use may amount to a taking The flights will not be deemed a taking unless they are so low and so frequent as to create a direct and immediate interference with the owner’s use and enjoy-ment of the property
Actions by the government that courts do not consider takings include the publication of plans or the plotting, locating, or laying out of public improvements, including streets, high-ways, and other public works, even though the publicity generated by such actions might hinder a sale of the land
The courts have traditionally not recognized the regulation of property by the government as
a taking Regulating property restricts the property owner’s use and may infringe on the owner’s rights To implement a regulation, the state exercises its police power and is able to control the use of the property Although the Supreme Court recognized a regulation as a taking as early as 1922, the Court was inconsis-tent in its later rulings on this issue In Pennsylvania Coal Co v Mahon, 260 U.S 393,
43 S Ct 158, 67 L Ed 322 (1922), the U.S
Supreme Court ruled that coal mining under an owner’s property was not a taking, despite a subsidence, or settling, of the property’s surface
In 1987 the Court stated that regulations that are excessive require compensation under the Fifth Amendment (First English Evangelical Lutheran Church of Glendale v County of Los Angeles, 482 U.S 304, 107 S Ct 2378, 96 L Ed
2d 250 [1987]) In addition, the Court deter-mined that regulations that strip property of value or that do not substantially advance legitimate state interests are takings for which compensation is required (Nollan v California Coastal Commission, 483 U.S 825, 107 S Ct
3141, 97 L Ed 2d 677[1987])
In a case examining a moratorium imposed
on development in the Lake Tahoe area, the U.S
Supreme Court decided that a moratorium on development is not necessarily a taking and that regulatory takings cases must be decided on a case-by-case basis rather than on categorical rules, Tahoe-Sierra Preservation Council v Tahoe Regional Planning Agency, 535 U.S 302, 122 S Ct
EMINENT DOMAIN 137
Trang 101465, 152 L Ed 2d 517 (2002) In that case, the Tahoe Regional Planning Agency had imposed a moratorium on construction and development that lasted almost three years while the agency devised rules to protect the water quality of Lake Tahoe on the California-Nevada border Some of the property owners sued, claiming that the moratorium constituted a categorical taking because they were deprived of all economically
BENEFICIAL USEof the property during the period of the moratorium In a 6–3 decision, the Court held that because the regulation was temporary, it could not constitute a categorical taking
Public Use The third element, public use, requires that the property taken be used to benefit the public rather than specific individuals
Whether a particular use is considered public is ordinarily a question to be determined by the courts However, if the legislature has made a declaration about a specific public use, the courts will defer to legislative intent (Hawaii Housing Authority v Midkiff, 467 U.S 229, 104 S Ct 2321,
81 L Ed 2d 186 [1984]) Further, “[t]he legislature may determine what private property
is needed for public purpose … but when the taking has been ordered, then the question of compensation is judicial” (Monongahela Naviga-tion Co v United States, 148 U.S 312, 13 S Ct
622, 37 L Ed 463[1893])
To determine whether property has been taken for public use, the courts first determined whether the property was to be used by a broad segment of the general public The definition of public use was later enlarged to include anything that benefited the public, such as trade centers, municipal civic centers, and airport expansions
The U.S Supreme Court later expanded the definition of public use to include aesthetic considerations In Berman v Parker, 348 U.S
26, 75 S Ct 98, 99 L Ed 27 (1954), the Court ruled that slums could be cleared in order to make a city more attractive The Court in Berman stated further that it is within legislative power to determine whether a property can be condemned solely to beautify a community
State Courts have also expanded the defini-tion of public use The Michigan Supreme Court allowed property to be condemned for the private use of the General Motors Company, under the theory that the public would benefit from the economic revitalization a new plant would bring to the community (Poletown
Neighborhood Council v City of Detroit, 410 Mich 616, 304 N.W.2d 455 [1981]) The Poletown decision was unusual because it was one of only a few cases in which a state government successfully invoked the power of eminent domain to transfer property from a private homeowner to another private entity on grounds that the transfer advanced the public purpose of economic revitalization
The Poletown case was widely criticized in Michigan, and 23 years later the state’s high court overturned it in County of Wayne v Hathcock, 471 Mich 445, 684 N.W.2d 765 (2004) The Michigan Supreme Court ruled that
a generalized economic benefit of alleviating unemployment and revitalizing the economic base of a community is insufficient under the state constitution’s takings clause to justify the transfer of condemned property from one private party to another private party The groundswell of opposition against Poletown in Michigan foreshadowed the national outcry over the U.S Supreme Court’s decision in
KELO V.CITY OF NEW LONDON, 545 U.S 469, 125 S
Ct 2655, 162 L Ed 2d 439 2005
In 1990, the state of Connecticut declared the city of New London a “distressed muni-cipality,” due to high unemployment, an aging and decreasing population, and tax revenues insufficient to reverse these trends State and local officials then targeted the city for
econom-ic revitalization Ten years later those offeconom-icials submitted a development plan projected to create more than one thousand jobs, substan-tially increase tax revenues, and provide a fresh, upscale look to the downtown and waterfront areas
The development plan contemplated achieving those objectives by converting resi-dential neighborhoods into a business district that would house a waterfront conference hotel, research and development offices, a U.S Coast Guard Museum, and a host of water-dependent commercial businesses Additionally, some of the area would be dedicated to creating a fresher looking residential neighborhood with room for approximately 80 homes Finally, ample parking space would be needed to accommodate the anticipated growth
To obtain the land needed for this project, the city’s development agent began purchasing property from willing sellers and used the