There are three main issues regarding takings: (1) what
constitutes a taking; (2) what constitutes a public use; and (3) what
constitutes just compensation. The current members of this Court have discussed
the public use question in Wayne Co v Hathcock, 471 Mich 445 (2004), and
the just compensation question in Silver Creek Drain District v Extrusions
Division, Inc, 468 Mich 367 (2003). In both of these cases, this Court
looked to the common understanding of the disputed terms, whether "public use"
or "just compensation." In both cases, this Court found that the terms were
technical legal terms that should be interpreted in light of the meaning that
those sophisticated in the law would have given those terms at the time of
enactment. Silver Creek, 468 Mich at 376; Hathcock, 471 Mich at
470-71.
In Hathcock, this Court stated: "The primary objective in
interpreting a constitutional provision is to determine the text’s original
meaning to the ratifiers, the people, at the time of ratification." 471 Mich at
468. This Court explained:
This Court typically discerns the common understanding of constitutional text by applying each term’s plain meaning at the time of ratification. But if the constitution employs technical or legal terms of art, "we are to construe those words in their technical, legal sense."
Id. at 468-69 (footnotes omitted, citing Silver Creek, 468 Mich at 375). This Court explained that the Michigan takings clause is
highly technical: "[W]e have held that the whole of art 10, § 2, has a
technical meaning that must be discerned by examining the ‘purpose and history’
of the power of eminent domain." Hathcock, 471 Mich at 471 (footnote
omitted). Where there is a technical meaning related to the common understanding
of a constitutional provision, the courts must "delv[e] into [the] body of case
law." Id. In Hathcock, this Court did not hesitate to deviate from
federal takings case law interpreting the Fifth Amendment of the United States
Constitution, which is similar to art 10, § 2. Hathcock, 471 Mich at
479-81.
