Eminent domain initiative could face Bill of Rights challenge

JACKSON – Mississippi’s anti-abortion initiative, dubbed the personhood proposal, is being challenged in court on grounds that it changes the Bill of Rights to the state Constitution.
If the courts rule that it does change the Bill of Rights, the proposal would be deemed unconstitutional.
It’s possible that another initiative scheduled for the November 2011 ballot – a proposal to keep the government from taking private land for another private entity – will be challenged on the same grounds.
No one argues that the state’s Bill of Rights is prohibited from being changed through the initiative law. Through the initiative process citizens can place issues on the ballot if sponsors gather the required number of voter signatures.
A group opposed to the personhood proposal, which defines life as beginning “from the moment of fertilization, cloning, or the equivalent thereof,” has filed a legal challenge that says the initiative is unconstitutional because the Bill of Rights makes numerous references to a person.
The legal challenge is currently being considered by Hinds County Circuit Judge Malcolm Harrison.
The Bill of Rights gives government the right to take private land, but does place some limitations on it. Since eminent domain is part of the Bill of Rights, some could argue that the initiative changing the process is unconstitutional.
Senate Judiciary A Chair Joey Fillingane, R-Sumrall, who tried to pass a proposal through the Legislature similar to the eminent domain initiative, said he would not be surprised by a legal challenge on Bill of Rights grounds.
“I am for the initiative,” he said. “I signed it and fought for it on the Senate floor. But I definitely think that argument will be made by some group opposed to the initiative.”
Farm Bureau President David Waide of West Point, the sponsor of the initiative, said he believes the proposal was crafted in a way to withstand any court challenge.
The initiative does not say the government cannot take private land, but prohibits “state and local government from taking private property by eminent domain and then conveying it to other persons or private businesses for a period of 10 years after acquisition.”
“We did not infringe on the Bill of Rights,” said Waide. “We would not prevent eminent domain. We would just prevent the use (when transferring to another private entity) for 10 years.”
In other words, Waide’s proposal would not prevent the use of eminent domain, but would make it useless since the taken land could not be transferred to another private entity for 10 years.
Waide stressed that the initiative would not prevent the use of eminent domain for public purposes, such as for roads, bridges and utilities.
During the 2009 session, Republican Gov. Haley Barbour vetoed a similar proposal and the Senate could not garner the two-thirds majority vote needed for an override.
Barbour maintained that the proposal would hurt the state’s ability to recruit major economic development projects, such as Nissan at Canton and Toyota at Blue Springs.
Waide said eminent domain was not used for the transfer of private land to Nissan and was used only once to transfer land to Toyota. And, he said, that instance could have been resolved without using eminent domain.
The proposal is needed, he said, because the U.S. Supreme Court ruled that private land could be taken for the use of another private entity unless prohibited by state law.
Waide said that since the Supreme Court ruling, 43 states have passed eminent domain restrictions similar to what he is proposing in his initiative.
Contact Bobby Harrison at (601) 353-3119 or bobby.harrison@djournal.com.

BOBBY HARRISON / Daily Journal Jackson Bureau