SID SALTER: Elected judges face tough decision on eminent domain

By Sid Salter

The one issue in which Republican Gov. Haley Barbour in great measure knocked heads with his political base in Mississippi is the contentious issue of eminent domain – the legal process by which the government can take private property when it is deemed to be in the public’s interest.
The national debate over eminent domain reached fever pitch in 2009 as part of the national backlash against a U.S. Supreme Court ruling expanding government authority to take private land. Since the high court ruled 5-4 in 2005 in Kelo vs. City of New London, Conn., that the city had authority to take homes for a private development project, 43 states have enacted laws aimed at neutering or weakening eminent domain laws.
In a strategy developed and nurtured in the Republican-controlled state Senate, three initiatives will be on the 2011 statewide ballot that should be political catnip to conservative voters – eminent domain, personhood and voter identification. Barbour is a longtime advocate of voter identification and all things pro-life. But Barbour believes the eminent domain reforms proposed by the Legislature and by the voter initiative on the issue will be a dangerous and unnecessary obstacle to the state’s ongoing economic development efforts.
Barbour pitched a veto shutout through his two terms as governor. His legislative vetoes have never been overridden. But the closest Barbour has come to losing a veto fight was in 2009 when some fellow Republicans turned on him in the battle over eminent domain. But Barbour enlisted help from loyal Republicans and Democrats to stave off that challenge in the state Senate after the House voted to override Barbour’s veto of the eminent domain bill.
Now comes Barbour’s Mississippi Development Authority executive director Leland Speed – the successful private real estate developer – filing suit in Hinds County Circuit Court against Secretary of State Delbert Hosemann to stop the eminent domain initiative. Speed maintains that the initiative is a solution in search of a problem. The state Supreme Court, Speed has argued, has protected property rights by ruling correctly in prior eminent domain disputes.
Speed has also argued that stronger eminent domain restrictions would impede the state’s future economic development efforts, saying that the state would not have such assets as the Nissan plant, the Stennis Space Center and the Ross Barnett Reservoir without existing eminent domain laws.
“Approximately 119,692 Mississippi citizens signed petitions to place eminent domain on the general election ballot,” Hosemann said. “By 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.”
The key issue is whether or not the eminent domain initiative changes the state’s Bill of Rights, as Speed contends. The state Supreme Court has been asked to consider that very legal question in another appeal of a 2011 ballot initiative on personhood.
Here’s where the politics of judicial elections make Speed’s eminent domain lawsuit and the personhood appeal dicey at best. Judges who rule with Speed on eminent domain and “against” personhood will carry those labels – for good or ill – into their own next re-election bids.
Speed is correct in that the state’s high court has traditionally been very protective of landowner’s rights in eminent domain cases and that the initiative reform indeed seems an overreaction to the federal Kelo ruling that could seriously harm competitive economic development efforts. But getting elected judges to rule that way on such a volatile political issue may be a tall order indeed.
Sid Salter is a syndicated columnist. Contact him at (662) 325-2506 or ssalter@library.msstate.edu.