Eminent Domain

Unless Leland Speed, the Executive Director of the Mississippi Development Authority (“MDA”), has his way, Mississippi voters will decide on election day, November 2, 2011, whether Mississippi’s Constitution of 1890 should be “amended to state that property seized through eminent domain cannot be given to any person, non-governmental entity, public-private partnership, corporation, or other business entity, for 10 years.” (Source: Clarion Ledger, June 17, 2011). Nearly 120,000 Mississippi voters signed petitions through the state’s ballot initiative process to get the issue on the ballot in November at the time of the state’s 2011 general elections; and Secretary of State Delbert Hoseman has stated that. . . “[b]y state law, I am required, and I intend, to place the initiative on the ballot unless otherwise ordered to do so by the Supreme Court. . . .”

Mr. Speed’s lawsuit challenges the legality of ballot initiative on the grounds that it would unconstitutionally affect the Mississippi Constitution’s Bill of Rights; “gut state economic development efforts”; and otherwise hamper the development of large future projects such as the Nissan and Toyota automotive plants. Others, including the Mississippi Farm Bureau, contend that since the Governor (citing economic development concerns) previously vetoed legislation designed to prevent eminent domain for economic development, the current ballot initiative is the best available way to stop the State from taking people’s homes and private property for the benefit of speculative economic developers of all types. They believe that private property rights are sacrosanct and cite, among other authorities, the “takings clause” of the Fifth Amendment of the Constitution Of The United States (written by James Madison), which mandates that private property may only be taken by the government for “public use” (and then only for just compensation), rather than for a “public purpose” or a “public benefit”.

The U.S. Supreme Court has consistently deferred to the states to make their own decisions as to what is a “public use” for eminent domain purposes. On a number of occasions the Court has allowed individual states to make expansive interpretations of eminent domain authority. For example, in the 2005 case of Kelo v. City of New London, Connecticut, the Court affirmed by a 5-4 decision the authority of New London, Connecticut, to take non-blighted private property and transfer it for one dollar per year to a private developer who promised a luxury hotel, upscale condominiums, new office buildings, and a projected $1.2 million in tax revenues.

It is noteworthy that in its Kelo decision affirming an expansive interpretation of the term “public use”, the four liberals on the Supreme Court were joined by the more moderate Justice Kennedy in order to reach a majority decision. The four conservatives on the Court, including Justices Antonin Scalia and Sandra Day O’Connor, vigorously dissented, arguing that valuable and sacrosanct private property rights had been unconstitutionally taken by the government for speculative purposes. It is further noteworthy that the proposed redevelopment in New London, the subject of the Kelo decision, proved to be a failure despite an expenditure of over $80 million of public funds. As of June, 2011, the property remained vacant.

The Kelo decision in 2005 inspired a huge public outcry that governmental eminent domain powers have become too broad; and several states enacted legislation that further defined “public use” and restricted the power of eminent domain. According to the Jackson Clarion Ledger, Mississippi is now one of only seven states that have not changed their property rights laws since the Kelo decision.

The power of government to take private real or personal property has always existed in the United States, but, in my opinion, should be restricted only to condemnation for true public uses, such as roads, fire stations, schools, and other public building. As things now stand in Mississippi, and as Justice O’Conner stated in her dissenting opinion in the Kelo decision, “[t]he specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

If Mississippians are allowed to vote on the issue in November, we will have within our grasp the power to reverse Justice O’Conner’s assessment of the status of eminent domain law in our state. We will have the opportunity to reinstate traditional eminent domain powers in Mississippi’ and restore the traditional protections written into the Fifth Amendment of the United States Constitution by James Madison for the benefit of all Americans, which states:

“No person shall. . . be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.”