Rhode Island has a provision in its constitution which allows condemning agencies to take more property than they might actually need “for actual construction” when building “public highways, streets, places, [and] parks or parkways.” See R.I. Const. art. VI, § 19. This provision also requires that in the event the condemnor doesn’t use all of the property it acquired for the project, the remainder may be sold as long as “the person or persons from whom such remainder was taken shall have the first right to purchase or lease” the property.
That’s what happened in Estate of Deeble v. R.I. Dep’t of Transporation, No. 14-235 (Mar. 24, 2016), where the DOT took property belonging to Mr. and Mrs. Deeble for a highway relocation project. Mrs. Deeble later died, and so did Mr. Deeble. Mr. Deeble’s estate succeeded to his rights.
The DOT didn’t use all of the property it took from the Deebles, and it planned to sell it off. But not to the Deeble Estate, to the Rhode Island Redevelopment District Commission. The Deeble Estate thought that under the constitutional provision cited above that it, not the Redevelopment Commission, should be offered the property first.
The Rhode Island Supreme Court disagreed. The right of first refusal is a personal one, and dies with the former owner(s). The court relied on the plain language rule, and concluded that “person or persons” means the actual people who owned the property:
We turn to the language of article 6, section 19 that is the subject of the present dispute—“the person or persons from whom such remainder was taken.” The estate argues that this language merely identifies those in whom the preemptive right is vested and that, by its plain and ordinary meaning, should not be construed as terminating upon the death of the original condemnee. We disagree. Had the General Assembly intended for the right of first refusal to transcend the death of the original condemnee, it would have expressly included such language within article 6, section 19. It did not. The contention that the right is vested not only in “the person or persons from whom such remainder was taken” but also in their heirs, successors, and assigns is inconsistent with the plain language of the provision. To hold otherwise would add language to the constitution, an exercise in which we will not engage.
…
Here, article 6, section 19 simply does not include language that the right of first refusal passes to the heirs, successors, and assigns of the original condemnee upon death. Since the Deebles were the owners of the property at the time of the taking, only they had the power to exercise the preemptive right. When the Deebles died, the right of first refusal under article 6, section 19 was extinguished.
Slip op. at 6-7.
Well, that’s mighty good of the court to not make stuff up, but we suspect this one — like most exercises in “plain language” analysis — is the tail wagging the results-oriented dog, and that the constitutional text was only as plain as the court needed it to be. It doesn’t seem like a stretch to us to say that the right of first refusal is a property right, and the constitutional drafters easily could have contemplated that it, like other similar rights, could be passed on by inheritance. Besides, what about corporate ownership of property? Yes, corporations are considered legal “persons,” but did the plain language include corporate ownership? What about good old-fashioned partnerships? We don’t recall those being considered legal persons.
Don’t get us wrong — we don’t necessarily disagree with the result reached, we’re just not all that convinced by the plain language analysis. Especially where, as here, the DOT argued that the legislative history of the constitutional provision showed that in cases like this, the drafters intended for right of first refusal to be extinguished.
Estate of Deeble v. Rhode Island Dep’t of Transportation, No. 14-235 (R.I. Mar. 24, 2016)