You remember the TV trope where Starsky, Hutch, or some other police officer is in hot pursuit of a dangerous criminal and flags down a motorist and "commandeers" their private vehicle and drives off?
We thought of that when we were reading the news reports about various governments invoking their emergency powers to respond to the coronavirus crisis.
So while we were on the telephone on hold (bailing out of every conference, event, and travel arrangement in the foreseeable future), we thought we would take a look at the recent Executive Order, issued by California Governor Gavin Newsom, which expressly mentioned the "power to commandeer [private] property" such as hotels and medical facilities and press them into public service, as needed:
The California Health and Human Services Agency and the Office of Emergency Services shall identify, and shall otherwise be prepared to make available-including through the execution of any necessary contracts or other agreements and, if necessary, through the exercise of the State's power to commandeer property - hotels and other places of temporary residence, medical facilities, and other facilities that are suitable for use as places of temporary residence or medical facilities as necessary for quarantining, isolating, or treating individuals who test positive for COYID-19 or who have had a high-risk exposure and are thought to be in the incubation period.
And, as you know, we look for "takings" angles in everything.
So that got us to thinking: is "commandeering" private property the same as "taking" private property for public use? If the state needs to go down that path, does it intend to provide compensation if it takes or damages property under its emergency power? After all, some courts say that when the government is exercising its police or emergency powers, there's no obligation to compensate the owner of private property taken or damaged thereby. The U.S. and California Constitutions would seem to say so.
So we checked out the statute under which the governor issued the EO, California Gov't Code § 8572:
In the exercise of the emergency powers hereby vested in him during a state of war emergency or state of emergency, the Governor is authorized to commandeer or utilize any private property or personnel deemed by him necessary in carrying out the responsibilities hereby vested in him as Chief Executive of the state and the state shall pay the reasonable value thereof.Notwithstanding the provisions of this section, the Governor is not authorized to commandeer any newspaper, newspaper wire service, or radio or television station, but may, during a state of war emergency or state of emergency, and if no other means of communication are available, utilize any news wire services, and the state shall pay the reasonable value of such use. In so utilizing any such facilities, the Governor shall interfere as little as possible with their use for the transmission of news.
Turns out commandeering includes the (statutory) obligation to pay.
So lighten up, Francis: if they commandeer private property for a public use, the legislature has recognized the obligation to "pay the reasonable value thereof." Not quite "just compensation," but perhaps close enough. We're glad to see recognition that private property rights are not suspended in times of emergency.
Comments open: we are by no means experts in this area, and if you are, please fill us in with more!
