CHARLIE MITCHELL: What, exactly, will Mississippi mean by ‘public use?’

By Charlie Mitchell

OXFORD – If our state were truly democratic, Jackson would be the size of a postage stamp. So would all other cities and towns in Mississippi.
Each started small. Each has grown through annexations. City expansions are rarely popular. If put to a vote, many would fail.
The very fact that there’s no such thing as an “annexation election” proves the obvious: Some laws are designed to bypass public opinion of the moment in order to achieve a greater good.
On Nov. 8, one of the three proposed changes to the Mississippi Constitution, will, if voters approve, trim the sails of state and local governments in the arena of eminent domain, a power very similar to annexation.
Today in Mississippi, when a town council wants to expand the city limits the hardest part is hiring a crew to prepare a metes and bounds survey of the proposed boundaries.
The next step is a piece of cake. All it requires is asking a chancery judge to apply a stamp of approval. The law tells the judge to OK any reasonable expansion.
No notice is required. Testimony is optional. Opponents can show up and explain why they’re against an annexation, but odds are stacked against them.
The law is biased because it makes sense for cities to grow in reasonable increments. And it is in the public’s larger interest for cities to be able to expand and gain authority to provide utilities and fire and police protection to new neighborhoods on a city’s perimeter.
Similarly, Mississippi laws say any entity with eminent domain powers need only show a public need and a public use for the land they wish to buy/ The owner or owners will be forced to sell. Jurors serve only one purpose – to set a fair price.
For a couple of centuries, as long as the role of government was more distinct from the private sector, this process worked well.
“Public use” meant taking private land for highways, airports, railroads and levees. Flood reservoirs such as Ross Barnett, Enid, Arkabutla, Sardis and Grenada were created using eminent domain powers. Same for parks and preserves at the local, state and national levels.
Gradually, however, the definition of public use and public need morphed into a more general “public benefit.”
This transition has been the basis for assorted public-private partnerships in Mississippi. They range from urban renewal efforts where dilapidated properties have been condemned by cities, purchased and resold to developers who pledge to fix them up to seeking land for the Nissan plant on Interstate 55 south of Canton.
Then came the so-called Kelo case. Some thought it pushed the envelope too far. The administrators of a Connecticut town, New London, proposed to force the transfer of private land from one owner to another private, hoping for more development, higher taxes and other public benefits. In 2005, the U.S. Supreme Court ruled 5-4 this was OK, that it fit the constitutional definition of “public use.”
Lawmakers in almost every state, including Mississippi, reacted, more narrowly defining what their laws meant by “public use.” Here, some thought the tighter rules didn’t go far enough. A citizen initiative, signed by then Farm Bureau President David Wade, has led to the measure on ballots next month.
Specifically, Initiative 31 would “prohibit state and local government from taking private property and then conveying it to other persons or private businesses for a period of 10 years after acquisition. Exceptions from the prohibition include drainage and levee facilities, roads, bridges, ports, airports, common carriers and utilities. The prohibition would not apply in certain situations, including public nuisance, structures unfit for human habitation, or abandoned property.”
Mississippi Development Authority leader Leland Speed opposes the initiative, saying sufficient safeguards have been added to Mississippi law and that Initiative 31 will kill the private investment the state desperately needs. We’ll sit on the sidelines and watch Tennessee, Alabama, Louisiana and Arkansas prosper, he said.
It’s not an easy question. It’s not as simple as “more jobs” vs. “private property rights” as some would have us believe. And it’s not either-or.
It’s a matter of where Mississippi will draw the line on eminent domain. It’s a matter of how we will define “public use.”
Mississippians, who will bear the consequences if these laws are too broad or too restrictive, are, correctly, in the driver’s seat.
Some serious thinking should take place before we cast our ballots.
Charlie Mitchell is a Mississippi journalist. Write to him at Box 1, University, MS 38677, or email cmitchell43@yahoo.com.