Special Master Bias in Eminent Domain Cases

By Aycock, S. Alan; Black, Roy | Real Estate Issues, Summer 2008 | Go to article overview

Special Master Bias in Eminent Domain Cases


Aycock, S. Alan, Black, Roy, Real Estate Issues


OVERVIEW OF EMINENT DOMAIN VALUATION

The various state laws in the United States are consistent on eminent domain valuation: the stated goal is the difference between the total value of the property before the taking and the total value after the taking. Various states break the valuation into two portions: (1) the value of the actual property taken; and (2) the reduction in value of the remaining property due to the taking. This reduction in value of the remaining property is also known as consequential damages.

To attempt to speed up the resolution of eminent domain cases, the various states employ arbitrators or arbitration panels to hear these cases and render a decision on property value. Eighteen states appoint attorneys--special masters--to hear these cases. (1) These states require a special master proceeding to be completed before an appeal to a higher court can be filed. The special masters are limited to deciding the amount due the property owner for the property taken, and they generally have broad discretion on admissibility of evidence. The decision of the special master can be appealed to a court of general jurisdiction and a jury trial.

The study in question concerns eminent domain cases in Georgia, where the special master is appointed by the judge or judges of the Superior Courts (the courts of general jurisdiction). (2) It is common for the condemnor to request the appointment of a specific individual as special master at the time the eminent domain action is filed in court; generally, the court agrees with the suggestion and makes the appointment. Hence, the condemnor is in effect appointing the arbitrator. Evidence from the actual cases analyzed suggests that there may be profound and persistent systematic bias by special masters toward the condemning authority.

Bias in valuations favoring the condemnor could have several possible causes:

* Direct appointment of the special master by the condemnor, or at least great influence by the condemnor in the selection process;

* A perception by the special master that awards favoring the condemnee will result in fewer appointments in the future; or

* A conservative bias resulting from a lack of valuation training that favors erring on the low side.

The problem in dealing with bias in special master cases is that the law tends to contemplate, and be oriented toward, individual bias but not systematic bias. The Georgia law is illustrative. In Georgia, the responsibility of the special master is to establish the value of the property condemned, and nothing else. (3) Georgia case law characterizes the special master's decision as judicial, or at least quasi-judicial. (4) 'Thus, the special master is a judicial officer within the contemplation of the immunity doctrine. (5) A complaint could be filed against a special master for bias, but it would be decided under the rules applicable for judicial misconduct. Such rules contemplate discipline for bias against an individual, but systematic bias in the form of consistently low or high awards would have no remedy.

The states require a special master proceeding to be completed before an appeal may be filed. Counsel for the condemnee may find it difficult to ascertain the pattern of rulings for any particular special master, since special masters often are only required to award an amount for the taking, and not issue a formal ruling that may be analyzed. Attorneys appointed as special masters may work in several different jurisdictions as well, making such research difficult. The states make removal of a special master difficult, and the removal requires a ruling from a superior court judge.

The sole remedy (other than judicial misconduct) for correcting special master errors is an appeal in Superior Court, the trial court of general jurisdiction in Georgia. However, the special master's finding of value will not be set aside if it is within the range of the evidence presented at the hearing (6) It would appear, then, that an attempt to appeal a special master's award who is systematically high or low will be unsuccessful. …

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