On November 16, 2007, the Mackinac Center for Public Policy filed a brief of amicus curiae[*] with the Michigan Supreme Court in the case of Michigan Department of Transportation v Tomkins. The legal dispute involves the amount of compensation a property owner should receive from state government when the state uses eminent domain to take part of the owner’s property. Specifically, the Michigan Supreme Court asked whether a state law that limits the property owner’s compensation to so-called "special-effect" damages violates the common understanding of the "just compensation" guaranteed in eminent domain cases by the Michigan Constitution.

The law in question is MCL 213.70(2), a 1996 amendment to the 1980 Uniform Condemnation Procedures Act. MCL 213.70(2) stipulates that in a taking, compensation should include "special effects" on the property owners, such as the loss of the property physically taken by the state, but not necessarily more "general effects," such as a loss in property value because a property now lies near a highway, drainage ditch, railroad, or other public project.

The Tomkins case arose from the M-6 highway project near Grand Rapids. A small portion of Rodney and Darcy Tomkins’ property, valued alone at $3,800, was taken through eminent domain by the Michigan Department of Transportation (MDOT). The Tomkinses’ appraiser indicated that the couple’s property lost $48,200 in value due to "highway effects," such as increased dust, dirt, noise, vibration, and smell from the road. MDOT contends that under MCL 213.70(2), no one may ever recover such general-effects damages.

The trial court agreed with MDOT, but the Michigan Court of Appeals reversed, ruling that because part of the Tomkinses’ property had been physically taken by the state, the Michigan Constitution’s "just compensation" clause requires the state to pay for the Tomkinses’ entire loss of property value.

The Michigan Supreme Court granted MDOT leave to appeal and specifically asked the parties and amici to address whether MCL 213.70(2) denies the "just compensation" guaranteed in the 1963 Michigan Constitution, given the constitutional ratifiers’ common understanding of that term. In a brief submitted on behalf of the Mackinac Center for Public Policy, Senior Legal Analyst Patrick J. Wright argued that MCL 213.70(2) violates more than a century of established Michigan precedent regarding partial property takings, and that this legal tradition was embodied in the common understanding of just compensation in the 1963 state constitution. Wright therefore concluded that the relevant portion of MCL 213.70(2) should be struck down as unconstitutional, and that the Tomkinses should receive compensation for the entire loss in their property’s value.


[*] “Amicus curiae” means “friend of the court.” Thus, the Mackinac Center is not a litigant in this case, but rather an interested observer supplying additional legal reasoning for the Michigan Supreme Court to consider.