In November, Mississippi voters showed their distaste for eminent domain by approving Initiative 31, a constitutional amendment that, nonetheless, won’t prevent a public road from slicing through their front yard.
In fact, there is much about the process of eminent domain the new law did not change in Mississippi, and what it did change is debatable.
The initiative, now an amendment to the state’s constitution, prevents the taking of private land for private development.
But it contains this clause: Governments can take property and transfer it to others – after 10 years.
John Reeves of Madison, a Jackson lawyer and member of the Jackson Redevelopment Authority, believes that provision guts the initiative, at least when it comes to large development projects, such as the Nissan plant in Canton.
“All the government has to do is enter into an agreement with a private entity and say, ‘We’ll just take the property and lease it to you for 10 years,’ ” Reeves said.
“In practical effect, the initiative didn’t do anything to stop what it intended to stop.”
Initiative 31 also did not touch most eminent domain cases.
Former Gov. Haley Barbour, one of the measure’s major foes, has said that more than 99 percent would remain unscathed, and that only economic development and job creation would suffer.
Clearly, though, the constitutionally protected power of the government, utility companies and the like to take a citizen’s land for public use is not particularly popular, even though it requires “just compensation” for the landowner.
“People of all political persuasion dislike the idea that the government can take what is ours for any reason,” Reeves said.
For developers and elected officials, eminent domain is a necessary evil, a precious fuel for the economic engine.
For others, it is an unfeeling machine of the government, a calculator and bulldozer rolled into one.
“Private ownership of property and limited government are principles deeply embedded in the American psyche and should be respected,” Reeves said.
“On the other hand, people want the government to spur and promote economic development to create jobs and wealth. And we need highways, prisons, courthouses.
“At some point, something has got to give.”
What gave, under Initiative 31, was the part about economic development, reflecting a backlash against a 2005 U.S. Supreme Court decision.
Only a few states have not passed similar prohibitions in the wake of Kelo v. New London, which held that individual states can decide whether to allow this “takings” power for economic development.
When 73 percent of voters approved Initiative 31, Mississippians said they won’t allow it.
Randy Knight calls the vote “a huge win for private property rights.
“In reality, we would have liked to have seen something stronger,” said Knight, president of the Mississippi Farm Bureau Federation, which championed the measure.
The 10-year clause was necessary, he said, in order to comply with the Fifth Amendment to the U.S. Constitution, which recognizes the power of eminent domain.
“I still believe that 10 years is a huge deterrent,” he said.
Leland Speed, an enemy of Initiative 31, does, too.
“Economic developers are not very likely to spend millions of dollars with the idea that they will be able to get the property 10 years from now,” said Speed, a prominent Jackson businessman.
The former interim director of the Mississippi Development Authority, Speed had considered a legal challenge to the initiative after passage.
“But I was persuaded that I would be wasting my time,” he said. “I’m moving on.
“I’m sure I’ll find more windmills to tilt with.”
Speed’s reference to windmill tilting, or a hopeless cause, resonates with Chris McDaniel, a Republican state senator from Ellisville whose grandparents’ property was taken decades ago for the expansion of U.S. 84 near Collins. He saw the state of Mississippi lop off a chunk of his grandparents’ lawn like a diseased limb.
“I remember the helpless feeling they had when the highway came within feet of their front door, how devastated they were when it destroyed their beautiful front yard,” McDaniel said.
“It left a bitter taste.”
His grandparents didn’t know any lawyers who could help them, McDaniel said.
“So they just took it.
“There was compensation, but whether it was fair market value, that’s a whole other story. Country folks, a lot of times, don’t have the resources to prove the value of their land.”
In eminent domain, there are only two major considerations, said Donald Campbell, visiting professor at the Mississippi College School of Law in Jackson. “The first is whether the property is being taken for public use. But, usually, the only one that is at issue is just compensation.”
Beyond dollars and cents, many people also place an emotional value on their land or home, said Joseph Waldo of Norfolk, Va., a nationally recognized eminent domain attorney and advocate for private property rights.
“Scholars who study property rights would say that property is just a fungible commodity, like lumber.
“But when people grow up in a home they have experiences there – senior prom, Christmas, graduation, cookouts or even burying the favorite pet in the backyard.”
None of which is considered by the courts.
“But to say that property doesn’t have an inherent personal value in it, you miss what a lot of Americans see in their property,” Waldo said.
“After all, we fought the Revolutionary War, in part, for property rights.”
And those rights are eroding, he said.
“For over 100 years, governmental leaders have lobbied to give most of the rights to the condemning authorities, not to property owners.
“That’s a real problem.”
Paul R. Scott, a Hernando attorney and eminent domain expert, put it this way: “A lot of times the property owner is going to get more than they were first offered, but they still have incurred expenses they should not have.
“If landowners challenge the government’s offer and win, in Mississippi they still have to cover costs of litigation and appraisals.
“So the amount they get is reduced, even though the jury says they were right from the start.”
Daniel B. Smith, in his role as chief of the right-of-way division at the Mississippi Department of Transportation, maintains the rights of property owners are adequately protected by state and federal laws.
Taking someone’s property for a new road or bridge, he said, “is a task that we take very seriously because we are exercising one of the supreme powers of government in the United States.”
Most of MDOT’s projects do not go to court, he said.
“On a statewide basis, I am pleased to say we are able to successfully negotiate about 85 percent of the parcels.”
Many of the remaining 15 percent involve problems with land titles.
This shows, he said, that his staff is doing a good job in developing a “trust relationship” with property owners.
Still, isn’t it a fact eminent domain proceedings always favor the government?
Yes and no, said Campbell.
“They force a sale from an unwilling landowner. In that sense, eminent domain inherently favors the government.
“Second, no; the process is meant to be as fair and transparent as possible.
“It is intended to allow governments to take private property for the public good, but it is not meant to be a ‘gotcha’ process to take advantage of the landowners.”
As an elected official, McDaniel said he recognizes the need to protect the public good. As a grandson, he also believes this: “When people like my grandparents are faced with the prospect of going to court, they just freeze up,” he said.
“People oftentimes will object but will not fight eminent domain; they fear that disparity of power.
“And by virtue of that coercive power, the government wins.”
Written by Gary Pettus | Clarion Ledger