Wednesday, July 06, 2005

"In the Lone Star State, property rights are strongly held, even regarded as sacred."

Editorial: Texas will limit eminent domain

July 6, 2005
The Victoria Advocate
Copyright 2005

"We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power," Justice John Paul Stevens wrote for the U.S. Supreme Court's majority in its recent decision in Kelo vs. City of New London.

"Indeed, many states already impose 'public use' requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised," Stevens continued.

The Kelo decision evoked considerable controversy because it broadened the power of the Connecticut city that was its defendant - and, by extension, every other entity of government in the country - to define eminent domain. Government would not be limited in invoking this power to acquire land for its own use. Now it could authorize private entities to do so in the name of economic development to produce greater tax revenue.

Like other rights the Bill of Rights protects, private property ownership is not absolute, no matter the vehemence with which absolutists insist otherwise. But as we noted in this space June 26, the nation's highest court went too far in potentially undermining that constitutional right.

Even Stevens and the four other justices who concurred in his ruling may have realized this, for the opinion both tried to justify their decision and reminded state legislatures that they could ignore it at will.

Earlier in the ruling, before the portion cited above, Stevens wrote, "Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the nation, just as they have evolved over time in response to changed circumstances.

"Our earliest cases in particular embodied a strong theme of federalism, emphasizing the 'great respect' that we owe to state legislatures and state courts in discerning local public needs."

So state lawmakers who do not want their political subdivisions to privatize eminent domain, as Connecticut's New London did, can restrict its use. They can prohibit the use in their territory of the expanded definition the Supreme Court approved in Kelo.

Justice Sandra Day O'Connor ignored this key point in her eloquent dissent: "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded - i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public - in the process."

As much as O'Connor and her careful reasoning will be missed from the Supreme Court, in this instance, she was too shrill. She did not pay enough attention to the important reservation her colleagues on the other side of the decision explicitly and repeatedly made: that state legislatures have the power to limit the use of eminent domain.

It is not impossible to envision legitimate uses for this expanded definition, although they should be carefully evaluated on a case-by-case basis to prevent its abuse. But, again, that is up to state lawmakers to determine.

In Texas, lawmakers from both parties and across the ideological spectrum responded forcefully and negatively to the Supreme Court's ruling in Kelo.

In the Texas House of Representatives, members as diverse as state Rep. Frank Corte, R-San Antonio, and Garnet Coleman, D-Houston, are backing a proposed constitutional amendment to prevent local governmental entities from defining "public good" to benefit private developers. Similar measures have been introduced in the Texas Senate.

The sponsors want Gov. Rick Perry to put this matter on the agenda for the 79th Legislature's special session. We disagree, for two reasons.

First, lawmakers have their hands more than full during the special session trying to reform the state's antiquated, inequitable, insufficient system of funding public education. That is the session's only priority. Nothing else should distract lawmakers until they have completed it.

Second, lawmakers would benefit from a little time and distance from the Kelo ruling, to ensure that they respond appropriately, rather than overreact and wind up restricting government's use of eminent domain to do what government legitimately needs to do.

We suspect that Perry might be concerned that such a constitutional amendment could affect his gargantuan Trans-Texas Corridor transportation project. Its private developers cannot fund and build it without using eminent domain on a scale that greatly - and legitimately - worries many Texans.

Texas lawmakers almost certainly will respond to the Kelo ruling by asking voters to limit the definition of eminent domain here, and voters probably will concur. In the Lone Star State, property rights are strongly held, even regarded as sacred.

Justice Stevens and his colleagues might not agree, but they do properly recognize this to be Texas' right in our federal system.

The Victoria Advocate: