Archive for Friday, October 7, 2005

Eminent domain restrictions proposed

October 7, 2005

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— Two Lawrence-area legislators have proposed legislation to restrict governments' eminent domain powers to take private property.

"It is imperative that Kansas send a loud and clear signal that the rights of private property owners will not be bulldozed by private developers," said Rep. Tom Holland, a Baldwin Democrat, whose district includes parts of south Lawrence.

He was joined by Rep. Ann Mah, D-Topeka, whose district includes southwestern Douglas County.

Their bill would prohibit the state, a city, county or other Kansas governmental entity from acquiring private property by condemnation for a private business development or use. The bill includes an exception for blighted properties.

The measure is needed, the legislators said, in response to a U.S. Supreme Court ruling in a Connecticut case that allowed a city to condemn homes for private business development.

Comments

glockenspiel 11 years, 8 months ago

Excellent idea...

Where the hell is everyone on this one? Everyone still debating cell phones and round-a-bouts?

jrysk 11 years, 8 months ago

Dear Reps. Holland and Mah:

Unfortunately, your proposal for eminent domain reform won't change a single outcome. It's far too vague, as several legislatures have found out when they were discussing similar wording.

I am preparing an article on the Kelo case for the November 2006, Stetson Law Review, and you might want to take a look at it:

Ryskamp, John Henry, "Kelo v. New London and Continuing Enforcement of the New Bill of Rights With a draft complaint for a Constitutional right to housing under the Due Process Clause of the Fifth Amendment" (October 3, 2005). http://ssrn.com/abstract=562521

As your lawyers will tell you, the issue comes down to this: with respect to eminent domain, which facts are you going to accord a higher level of scrutiny? All but a few facts enjoy only minimum scrutiny with respect to eminent domain, as per Kelo.

However, it is quite clear that people want housing to have as high a level of scrutiny as free speech. That is strict scrutiny. They also want other facts--such as businesses where the owners operates the business--to have a higher level of scrutiny. So, if you are really interested in changing outcomes, your legislation should say something like this:

"Eminent domain shall not be exercised unless it is substantially related to an important government interest and with respect to housing unless it is narrowly tailored to achieve a compelling government interest."

This is strict scrutiny for housing with respect to eminent domain, and intermediate scrutiny for everything else with respect to eminent domain.

I must tell you that legislators, such as those in Connecticut, Texas and Alabama, who have proposed the vague terms you are proposing, have simply gotten laughed at. You are not up to speed on developments in this area.

Please let me know if you have comments or questions.

Cordially yours, John Ryskamp

Celeste Plitz 11 years, 8 months ago

At least someone is trying to do something-I was appalled at the Supreme Court decision. Hopefully they will get it worded right and the finished bill will go on to protect the rights of the regular person. Let's hope.

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