Giving private entities the power of eminent domain

By Seth J. Chandler

Interesting article in today’s Houston Chronicle. It’s about the exercise of eminent domain power by the Texas Medical Center in Houston and some recent conflicts with nearby residents that have resulted. Here’s what seem to me to be the key paragraph:

The owner of all this property is the Texas Medical Center Inc., the nonprofit that handles logistical and administrative tasks for the world’s largest complex of medical institutions. The Medical Center has grown dramatically since its beginnings in 1941, but its acquisitions on Lockett Street stand out because they include its only use of eminent domain since the Legislature gave it that authority 50 years ago.

So, the question is, how does giving something that is not quite the government the power of eminent domain square with cases such as Kelo in which, even as the Supreme Court approves eminent domain in the particular instance, it expresses skepticism about the use of eminent domain to transfer resources to a private individual. What Texas has arguably done is to avoid Kelo by delegating to a private (unaccountable?) entity the power of eminent domain in the first place. There’s thus no need for government itself to transfer the condemned property to a private entity.

As it turns out, there’s a law review article on this very issue. Professor Asmara Tekle-Johnson (http://www.tsulaw.edu/faculty/profiles/asmara_Tekle.asp) of Texas Southern University Law School has written Privatizing Eminent Domain: The Delegation of a Very Public Power to Private, Non-Profit and Charitable Corporations, 56 Am. U. L. Rev. 455 (2007). The article specifically tackles exercises of eminent domain by the Texas Medical Center. Professor Tekle-Johnson does not focus on whether the fifth amendment limits the practice, however. Instead, she considers whether the exercise of eminent domain by a private body with minimal accountability to the public violates the Texas Constitution and provisions limiting delegation of government power to private bodies. The lead case, Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1994), sets up an 8 (!) – part test (conditioned on a 3-part test!!). The author, whose bias does need to be considered in light of her civic activism on the issue, nonetheless concludes with some force that eminent domain by the Texas Medical Center flunks the test.

It also turns out there’s significant law addressing eminent domain by private bodies for the public use. It really can’t be summarized here, but the predominant thought appears to be that it is not automatically impermissible. I wonder, however, how well takings by a minimally accountable A from B to give to that same A are going to stand up before the current Supreme Court. If the courts strike down the current plan, it won’t mean that Houston’s hospital district can’t expand, just that another procedural mechanism will need to be in place before it does so.

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