Public Comment. Volume III - Montana Legislature

HOLLAND & HART
ATTORNEYS AT LAW
LLP
Environmental Quality Council
April 11, 2000
Page 3
advanced for changing the burden other than that "clear and convincing" is a
middle ground which, as we.have pointed out, is not accurate as far as civil
litigation is concerned. Like many of the proposals before the subcommittee,
this type of change would make the exercise of eminent domain more difficult
without any objective justification.
To the extent we can take guidance from other jurisdictions,, it is
significant that all of the western states surrounding Montana (Wyoming, Utah,
Colorado, Idaho, and North Dakota) do not require the higher standard.
It has been proposed that a jury rather than the judge make the
determination of necessity, that is whether the taking is necessary for the
intended public use. MCA 70-30-1 11(2). That decision has been made by the
court (judge) for years and it should not be changed. Having a judge determine
the issue of necessity lends consistency and predictability to the process.
Necessity is not defined in the eminent domain statutes, but there is case law in
Montana which sets standards for that determination. Those standards are better
understood and applied by a judge who has legal training, rather than a jury of
laypersons who do not have access to the case law, and more importantly are not
trained in the Iaw.' To the extent possible, interpretations of what is necessary
should be consistent, and lack of consistency or predictability on this issue
benefits neither the landowner nor the condemnor.
There is precedent in other areas for the judge to make the decision on
necessity. Quiet title actions and partition of real property are two areas in
which a judge, not a jury, is the trier of fact. Again, tbis is an area in which
Montana law is compatible with the surrounding states. Of course the
condemnee is entitled to have a jury determine fair or just compensation, and in
fact is entitled to present that issue to a panel of three commissioners prior to a
trial in district court. Either party may appeal the award made by the
commissioners to the district court and have ajury set compensation.
I also disagree with the proposal that possession be postponed until all
appeals are exhausted. Unfortunately, our court dockets are very crowded and
the judicial process does not move with the speed that we might wish. Criminal
cases take precedence over civil actions, and postponement of possession by the
condemnor could delay commencement of a project for many months, if not
years.
-1 20- Volume Ill: Public Comment