Institute for Justice report on property rights protection


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November 8, 2006

2006 Election Wrap Up:

Voters Overwhelmingly Passed

Eminent Domain Reform

Arlington, Va. – Amid many close races in yesterday’s mid-term elections, there was one issue an overwhelming majority of voters agreed on: the need to limit government’s power of eminent domain following last year’s despised U.S. Supreme Court Kelo ruling.

Eminent domain ballot measures, restricting governments from taking private property and giving it private entities, passed by wide margins nationwide.  In the eight states with ballot measures limiting eminent domain by addressing “public use,” all eight passed overwhelmingly.  Yesterday’s election, combined with earlier reforms passed by the states, raises to 35 the number of states that have limited eminent domain abuse.

Voters Pass All Six Constitutional Amendments Referred by Legislatures

The strongest protection a state can offer property owners is to put it in the constitution, and legislators referred a number of amendments to their constituents.

· With more than 85% approval, South Carolina’s constitution now specifically prohibits municipalities from condemning private property for “the purpose or benefit of economic development, unless the condemnation is for public use.”  Also, an individual property must now be a danger to public health and safety for it to be designated as “blighted,” closing a loophole that enabled local governments to use eminent domain for private use under the State’s previously broad blight definition.

· In Florida, which had been one of the worst abusers of eminent domain, government can no longer take property for so-called “blight” removal and the newly passed statutes prohibit localities from transferring land from one owner to another through the use of eminent domain for 10 years-effectively eliminating condemnations for private commercial development.  After yesterday, with nearly 70% approval of the constitutional amendment, each house of the Legislature must now pass exemptions by a 3/5 vote.

· In Georgia, nearly 85% of the electorate voted in favor of a constitutional amendment requiring a vote by elected officials any time eminent domain will be used.  Coupled with statutory reform, Georgia property owners are now protected from eminent domain abuse.

· More than 80% of Michigan voters approved a proposed constitutional amendment that prohibits “the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenues” and requires government to prove its authority to take a piece of property for blight removal by clear and convincing evidence.

· New Hampshire’s legislature passed both statutory reform as well as a constitutional amendment, which was supported by more than 85% of New Hampshire voters.

· Louisiana was the first post-Kelo constitutional amendment to restrict eminent domain abuse, passing in September’s primary election. The amendment prohibits local governments from condemning private property merely to generate taxes or jobs
and ensures that the State’s blight laws can only be used for the removal of a genuine threat to public health and safety on a specific piece of property.

Voters Passed Citizen Initiatives That Solely Limit Eminent Domain

· Nevada’s constitutional amendment, which was presented to voters through a citizen initiative and sharply limited eminent domain for private development, was affirmed by over 60% of voters and will reappear on the 2008 ballot for final approval.

· Oregon voters overwhelmingly passed, with over 65% approval, a citizen initiative that provides stronger property rights protections in Oregon’s statutes.

“Citizens around the nation agree that property rights must be protected in the wake of the Kelo decision,” said Chip Mellor, president and general counsel of the Institute for Justice, which represented the homeowners in Kelo before the U.S. Supreme Court.  “The public is right to be outraged and fearful, with such a fundamental right left to the whim of government and the influence of wealthy developers.  The state response has been historic, but Congress needs to act and offer federal protection as well.”

Mixed Results for Efforts Combining Eminent Domain and Regulatory Takings

· More than 65% of Arizona voters passed an initiative that restricted the definitions of “public use” and “blight” in spite of the controversial regulatory takings language included in the measure.

· Without a legislative session this year, North Dakota passed a constitutional amendment through a citizen initiative that prohibits private use of property taken though eminent domain and requires compensation for regulatory takings. The measure passed with over 65% approval.
· Measures that sought to limit regulatory takings and eminent domain in California and Idaho failed.  Those initiatives did little to stop the type of eminent domain abuse exemplified in Kelo.  (In Washington, a measure dealing exclusively with regulatory takings failed.)

“Where the public could vote on pure eminent domain reform, they marched to the polls and demanded to be heard,” said Senior Attorney Scott Bullock, who argued the Kelo case for the Institute.  “An overwhelming majority of the public recognize how a narrow majority of the Supreme Court got it wrong.”

“Yesterday’s election results highlight the nation’s complete rejection of eminent domain for private development,” said Institute for Justice Senior Attorney Dana Berliner. “That is why it is so surprising that the U.S. Senate leadership has completely failed to address the issue. I hope the Senators, especially Senator Frist, will use the few remaining days of this Congress to finish the work the House started last year and pass reform that will protect the entire nation.”

Mellor said, “The popular backlash against Kelo remained strong.  The momentum for eminent domain reform continues – fueled by the outrage of property owners and a nation’s concern over this onslaught on fundamental rights.  Yesterday’s eminent domain ballot measure successes are property rights victories.  Other states need to continue the push and do exactly what the U.S. Supreme Court refused to do:  protect homeowners from this abuse of government power.”

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From Larry Gilbert, member, Castle Coalition the “grass roots” arm of the Institute for Justice

About Larry Gilbert