Friday, November 11, 2005

"Just because government 'can wear a jackboot' doesn’t mean it should."

Eminent domain continues to drive debate


by James A. Bernsen

The Lone Star Report
Volume 10, Issue 14
Copyright 2005

Eminent domain remains an unfinished issue, speakers at a forum said Nov. 2. Despite passing a bill in the second special session to address the fallout of the Supreme Court’s Kelo vs. New London decision, the Legislature will likely take up the issue again the next time it meets.

The forum, sponsored by the Texas Public Policy Foundation, weighed the consequences of the Kelo case, in which the court ruled that governments had a right to use eminent domain laws to condemn private land not only for a public use, but for economic development.

The case provoked nationwide outrage, as well as an effort in Texas for a quick fix. Rep. Frank Corte (R-San Antonio) was among those who led the charge, filing a bill and constitutional amendment in the first called session last June.

As debate began, however, questions arose about whether the proposed legislation could limit supposedly legitimate uses of eminent domain. In the end, the Legislature responded to Kelo by passing Sen. Kyle Janek’s (R-Houston) SB 7. Corte said the legislation was a first step. Interim studies have also been proposed. Corte agrees with the extra focus, but said he hopes the issue doesn’t get pushed aside.

“We can study it all day until the cows come home, but the truth is, it’s wrong to take personal property for economic development,” he said.

Corte said that the ultimate goal of eminent domain reform should be enshrining property rights in the Constitution through an HJR.

“A lot of people would say, ‘Well, why do you need it in the Constitution?’” Corte said. “I feel that since the Constitution pretty much gave the state the power to take property for eminent domain purposes, then we need to amend the Constitution to [say] that this would not be an appropriate taking.”

A sense of urgency

Clark Neily, with the Institute for Justice, which unsuccessfully fought the Kelo ruling, said Americans can’t simply sit back and leisurely study eminent domain in perpetuity. Kelo, he said, “opened a floodgate.”

Most disturbing, he said, was that some governmental entities are arguing that eminent domain for economic development should promote the “highest public use” of the land. Judged by tax revenue, he said, it’s not likely that the average homeowner would ever be found using land at the “highest use” level.

As Ted Cruz, the state’s solicitor general, said, such use of eminent domain amounted to reverse Robin Hood. “This will always be used to take property from the poor and give it to the rich,” he said. “It will never be used the other way around.”

Cruz said even more surprising than the court ruling was the response of some colleagues nationwide, who thought that any increase in government power was good. Cruz said just because government “can wear a jackboot” doesn’t mean it should.

“There are few rights more important to human liberty, more important to the fundamental freedom of people than the right of property,” he said. Noting the reaction to the ruling nationwide, Cruz said this could be a case where the court decision ultimately aids property rights.

“We in Texas – home of the Alamo – know something about losing a battle and winning the war,” he said.

Donald Lee, representing the Texas Conference of Urban Counties, said it was not necessarily true that cities and counties wanted the expanded authority for eminent domain. While cautioning against legislation that would inadvertently shut off eminent domain for legitimate uses, Lee endorsed action that would address Kelo.

“[Eminent domain] is a necessary evil,” he said. “And it is evil. After all, politicians like to make friends, and eminent domain does not make friends.”

Much of the state’s transportation infrastructure, he noted, however, was created through eminent domain. Many services provided by common carriers, such as piplelines and electric lines, were also aided by eminent domain. Lee also cautioned that a cottage industry of developers and others abuse the compensation provisions of eminent domain law to squeeze more money out of the taxpayers. He said that any solution to eminent domain based only on increasing the reimbursement would play into the hands of those people, in the end only increasing costs to taxpayers.

“We don’t have a problem with a constitutional change being made,” he said. “We just haven’t seen language yet” that protects legitimate uses.

Freeport case

The most famous battlefront in the war over eminent domain is Freeport, where the city’s Economic Development Corporation (EDC) is trying through eminent domain to secure land for a private developer’s marina project.

Target of the condemnation proceedings is the headquarters of Western Seafood, Inc., a shrimping business. Owner Wright Gore, III, whose family has run the business for 50 years, said he refused EDC’s request to sell a portion of his property on grounds the sale would block his company’s access to the waterfront and effectively run him out of business.

EDC’s decision to pursue eminent domain condemnation began a legal battle Gore and his company are still fighting. A cause celebre for supporters of tougher new legislation, the Western Seafood case has divided Freeporters, who this week defeated by only 21 votes a proposal to abolish the EDC. The ad hoc group that sponsored the measure – Citizens for Freeport – decided against calling for a recount despite the narrow margin of defeat.

Other laws

Texas is one of three states – the others are Delaware and Alabama – that have passed eminent domain legislation since the Kelo decision. Arizona already had a law covering the issue. But Neily said all these laws include loopholes that allow cities to liberally interpret the eminent domain powers to alleviate blighted areas.

A sticking point with these statutes, including Texas’, is the definition of public use. Even those supporting eminent domain reform last session found it difficult to agree. Neily suggested Texas start with what a public use is not – specifically taking land from one private interest to give to another private interest. O

© 2005 The Lone Star Report: