It Was 30 Years Ago Today…

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Robert Thomas
Robert Thomas

BY ROBERT THOMAS …No, not Sgt. Pepper. It was on this day in 1984 that the U.S. Supreme Court issued its 8-0 decision in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), as this article (“Today in 1984: SCOTUS Upholds Hawaii Land Redistribution Eminent Domain Plan“) correctly notes.

Check it out. The author, “an attorney practicing in the areas of family law and estate planning” (?) does a good job and asks valid questions:

Why was there so little outcry against Midkiff, which involved a government takings program far vaster than that at issue in Kelo? For one, there has been a rise in general distrust of government among the populace between Midkiff and Kelo. But, perhaps more significantly, as noted in an earlier Today in Legal History installment, Kelo’s property transfer was, generally speaking, from poor to rich, whereas Midkiff’s transfers were the other way around.

We have wondered the same thing. What the author may not know is that the public vibe, at least in Hawaii, has shifted regarding the wisdom of the use of eminent domain to take property from landed alii trusts. When a measure was proposed to create a similar land reform act applicable to condominium property regimes (the LRA at issue in Midkiff applied only to single-family residential), the legislature rejected it. A similar ordinance was eventually adopted by the City and County of Honolulu, and ultimately upheld under Midkiff by the state and federal courts from public use challenges. But after several years of implementation, the city council repealed the law due to public outcry. So times have definitely changed, even though we suspect that this has more to do with Hawaiian empowerment than it does a distaste for eminent domain generally.

We’ve also questioned Midkiff‘s core holding: is an exercise of the domain power really the same as an exercise of police power? In Midkiff — and most recently confirmed by the majority in Kelo — the Court told us that eminent domain was just another land use regulatory tool, like zoning, so deserved to be reviewed by the court under the same deferential “rational basis” standard, or perhaps with even less scrutiny under the no-standard Berman standard (“well-nigh conclusive”).

The author of the article suggests that the result might be different were Midkiff before the Court today, and we think he’s probably right, although there may not be enough votes to overrule it entirely. Read his entire piece here.

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.