The Castle Eminent Domain Down Under

by Robert H. Thomas The Kerrigan home will never make the pages of Australian House Beautiful: it sits in the flight path of the Melbourne airport, massive power lines run overhead, the back yard used to be a toxic landfill, and the owner has installed a few -- ahem -- unauthorized additions including a greyhound kennel, a massive TV aerial, and a faux chimney. But despite its faults, its home -- The Castle -- and tow-truck driver Darryl Kerrigan intends to protect it from compulsory acquisition (Australias version of eminent domain) when the airport authority, backed by a large corporation, decides it needs to take the neighborhood for an expanded runway. The familys peaceful existence is shattered by the take-it-or-leave-it offer from the local council for paltry compensation.
Robert H. Thomas is a lawyer at Damon Key Leong Kupchak Hastert. He practices eminent domain, land use, and appellate law. He chairs the Condemnation Law Practice Group in the ABAs Section of State and Local Government Law.

Mr. Kerrigan isnt interested in selling. The family doesnt consider the adjacent airport to be a nuisance (itll be conveniently within walking distance if they have to fly one day), and they optimistically view the overhead power lines as just a reminder of mans ability to generate electricity. Their neighbor Farouk, a Lebanese immigrant, explains why he doesnt mind deafening airplane noise in his back yard: They say the plane, they fly overhead, drop the value. I dont care. In Beirut, plane fly overhead, drop bomb. I like this plane. At first, Kerrigan tries self-help in the local courts: Judge: What is the case you are putting? Kerrigan: I told you. I mean, you just cant walk in and take

a mans house. Judge: Mr. Kerrigan, are you disputing the amount of compensation? Kerrigan: Im not interested in compensation. Im saying you cant kick me

out. Judge: What is your argument? Kerrigan: Thats it. Thats my argument. You cant kick me out. Judge: And on what law do you base that argument? Kerrigan: The law of bloody common sense! You cant buy what Ive got, he responds when asked whether the compensation offered is insufficient. But predictably, these arguments get him nowhere, so he retains a well-intentioned but horribly inept local solicitor, who is, by his own estimation, over his head when it comes to eminent domain and constitutional law. He only makes the case worse when he bases his argument on the vibe of the constitution. Only when an experienced constitutional barrister takes on the case pro bono do things begin to look up. The final act plays out in Australias High Court, with the barrister arguing that the Constitutions requirement that takings be accomplished on just terms prohibits the seizure of family homes to satisfy corporate desires. The film presaged similar conflicts in the U.S. Supreme Court (the infamous 2005 decision in Kelo v. City of New London), and the Hawaii courts. The Castle doesnt gloss over the legal issues, and touches upon the Mabo and Tasmanian Dam cases, and article 51 of the Australian Constitution. But whether the film is accurate from the standpoint of Australias law of compulsory acquisition isnt really important, because it accurately catches the vibe of the thing (to paraphrase one of the films more well-known lines) of why home and business owners resist eminent domain. Some things, I suppose, are universal. _____________________ About the presenter Robert is always looking for ways to incorporate the timeless lessons of movies into his work. Whether the lesson is from Apocalypse Now (never get out of the boat, unless you are going all the way), or even from Star Trek (trust Sulu, not Chekov), Robert regards film as a medium that truly captures the essence of experience in a way no other can. When not on the road in his capacity as the Chair of the Condemnation Law Practice Group at the ABAs Section of State and Local Government, Robert can be found at the local arthouse searching for the latest and greatest (he never reads reviews until after he has seen a movie). He liked law school so much he attended twice (LLM, Columbia Law; JD, University of Hawaii), and survived both by mimicking Ben Stone on Law and Order. Contact Robert at rht@hawaiilawyer.com, or at his blog on eminent domain and land use, www.inversecondemnation.com.