Saturday, March 28, 2020
Hawai'i Free Press

Current Articles | Archives

Monday, April 18, 2016
Guam Justice--34 Years After Mayor’s Land Grab
By Robert Thomas @ 11:02 PM :: 2544 Views :: Land Use

Guam SCT: Eminent Domain Statute Cannot Limit Right To Just Compensation

by Robert Thomas, Inverse Condemnation, April 18, 2016

Guam land titles can be seriously messed up. This case, Gov't of Guam v. 162.40 Square Meters of Land, No. CVA14-011 (Mar. 17, 2016), about which we posted earlier (when it went up to the U.S. Supreme Court and was denied review) is an example. To reconfigure irregular lot lines left over from the World War II Japanese occupation and American liberation and the resulting destruction of records, Guam adopted the "Agana Plan," which it viewed as a redevelopment plan of sorts. Or at least that's how it was employed, even though the Plan had until 1981, never been used to take any property.

But 1981 was different. Ilagan owned land in Agana on which he ran an apartment building. Ungacta -- who was then the Mayor of Agana -- owned a neighboring residentially-zoned lot. In 1981, the Ungacta property did not have access to a road. Ungacta appraised a part of the Ilagan property that had access, and which was used for parking for Ilagan's tenants. Soon after, the Guam government condemned the appraised area, paying for it with compensation supplied by Ungacta, and transferred it to Ungacta. The government deposited $9,744 and took possession.

The Supreme Court of Guam held the taking was for public use, and the U.S. Supreme Court declined review. So back the case went to the trial court for a calculation of compensation. In 2009.

The trial resulted in a $45,000 judgment for just compensation. As condemnation lawyers know, when the condemnor takes title or possession to property before the final award of compensation, and the final award exceeds the deposit, the property owner is entitled to the time value of the money she should have been paid contemporaneous with the taking.

In this case, the time value of approximately $35,000 for nearly 35 years.

Many states have statutes that require the payment of interest in these circumstances. Hawaii calls it "blight of summons," but that is a somewhat confusing label, since it is easy to get that mixed up with precondemnation blight, which it isn't. Guam has a statute that requires that a condemnation judgment "include, as part of the just compensation awarded, interest at the rate of six percent (6%) per annum on the amount finally awarded as the value of the property as of the date of taking, from said date to the date of payment" minus the interest on the amount on deposit.

But just like Hawaii's statute isn't really about "blight," the "interest" provided for in these statutes isn't really interest, even though the statutes call it that. They are supposed to be codifications of the constitutional requirement of just compensation, aka, the "full and perfect equivalent" of the property taken. And if property is taken but payment of full comp is delayed, then the full and perfect equivalent means the time value of the money. 

Which is exactly what the Guam Supreme Court held. The former property owner challenged the 6% interest rate provided for in the statute, arguing it did not make him totally whole. Guam opposed, arguing that the statute is the statute and the trial court can rely on the statutory interest rate. Not so, held the court, there has to be a fact-specific approach to determine whether the statutory rate was proper and reasonable. In other words, "constitutionally adequate." This means the rate of "interest" must yield the same as what a reasonably prudent investor with the proceeds would have received. That's what "full and perfect" means, not the rate set by the legislature.

Yes, the statutory interest rate is presumably reasonable. But the landowner may rebut the presumption

by showing that the rate fails to meet the constitutional standard of "just compensation." Thus, the court is not bound by the statutory rate and must consider evidence offered to rebut the presumption of reasonableness. Furthermore, we hold that the statutory rate operates as a floor; while the court is not bound by the rate, it may only deviate upward, not downward.

Slip op. at 12.

Instead of doing this, the trial court merely applied the statutory rate, despite evidence which the owner submitted of a better rate of return.

The court also concluded that the Fifth Amendment allows compounding of the interest, and the statute's silence on the method of interest (compound vs simple) was not dispositive. See slip op. at 16 ("Thus, the trial court erred in simply relying upon the silence in the statute as being dispositive of the issue; where, as here, the condemnee argues that simple interest would be inadequate and presents evidence in support of an award of compound interest, the court should assess whether such compounding of interest is necessary to satisfy the requirement of just compensation.").

So after 34 years, maybe there will be some measure of justice?

PDF: Gov't of Guam v. 162.40 Square Meters of Land, No. CVA14-011 (Guam Mar. 17, 2016)

 

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

ALEC

Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii

AMVETS-Hawaii

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

ChinaTownWatch.com

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii

DeedySupport.com

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii

FIRE

Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Habele.org

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling

HIEC.Coop 

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube

HPACC

Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes

KeyWiki

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii

NARTH

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

School Choice in Hawaii

SenatorFong.com

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT