Eminent Domain: A Lawsuit Waiting to Happen?

Ward Schaefer

A ballot measure backed by the Mississippi Farm Bureau Federation President David Waide could be subject to legal challenge.

by Ward Schaefer
October 13, 2010

The Mississippi Constitution is a tough thing to change. While state law allows voters to amend the Constitution by approving a ballot initiative, it also prohibits ballot initiatives from changing the section that lists the state Bill of Rights.

That requirement has already landed one voter initiative, defining personhood as beginning at the moment of fertilization, in court. A second initiative limiting the government's use of eminent domain could fall prey to the same sort of challenges.

Secretary of State Delbert Hosemann accepted a petition in support of the eminent-domain ballot measure Sept. 24. Hosemann's office will review the petition's 119,251 signatures; if they pass muster, voters could decide in the 2011 statewide election whether to temporarily curb the use of eminent domain for non-public projects.

Proposed by the Mississippi Farm Bureau Federation, the ballot measure would ask voters, "Should government be prohibited from taking private property by eminent domain and then transferring it to other persons?"

In supplementary information, the petition states that the measure would only temporarily prevent state and local governments from transferring property that they take by eminent domain for 10 years after acquisition. The initiative grants exceptions for most public works and utilities projects, which often involve the use of eminent domain and eventual transfer of property to private contractors. It also exempts the use of eminent domain for removing a public nuisance and acquiring abandoned or hazardous property.

The state Constitution addresses eminent domain in the Article 3, contained in the state Bill of Rights. That would appear to leave the ballot initiative vulnerable to a court challenge, on the grounds that it violates Article 15, Section 273, of the state Constitution, which prohibits the use of a ballot initiative "(f)or the proposal, modification or repeal of any portion of the Bill of Rights."

Greg Gibson, spokesman for the Farm Bureau Federation, acknowledged that the Bill of Rights includes provisions for eminent domain. The ballot initiative would not amend anything in the Bill of Rights, though, he said.

"If they wanted to take somebody's land, they can actually still do that," he said. "But there is a waiting period of 10 years before it can be transferred over to the economic-development people. So we're going to be adding language to the Constitution, if this passes. It won't be amending anything that's already there; it's just going to be some added language that will put that restriction there."

The Farm Bureau's argument bears some similarity to the defense Personhood Mississippi offered to the challenges to its own ballot initiative. That initiative explicitly adds a definition of the term "person" to the Bill of Rights. Steve Crampton, an attorney with the conservative legal action firm Liberty Counsel, argued last week in Hinds County Circuit Court that the initiative would not create or modify any of the rights already in the Bill of Rights. Judge Malcolm Harrison has yet to rule on the lawsuit challenging the measure.

In practice, the eminent-domain measure as proposed also raises plenty of questions. A similar bill that the state Legislature approved in 2009 failed to win the support of Gov. Haley Barbour. In his veto message, Barbour claimed that the bill would prevent large economic-development projects like the Nissan auto-manufacturing plant in Canton. Farm Bureau Federation President David Waide has claimed, however, that such large projects have not required the government's transfer of eminent-domain property to other entities.

City spokesman Chris Mims said the initiatives' potential impact on economic development projects in the city was unclear. "We're just going to have to wait and see what effect it could have," Mims said. "Eminent domain is not widely used by the city of Jackson."

Eminent domain does figure more frequently in the work of the Jackson Redevelopment Authority, which enjoys a distinct identity from the city government and somewhat looser restrictions on its economic-development powers. Agencies like JRA often buy up property with the intention of assembling it into larger tracts that may be more attractive for developers. Occasionally, these agencies also use eminent domain.

JRA Executive Director Jason Brookins declined to comment on the initiative because the JRA may use eminent domain in upcoming projects.

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