IJ weighs in on Georgia eminent domain reform

The Institute for Justice has sent a statement (the letter is in PDF format) to State Senator Jeff Chapman explaining that new eminent domain reforms passed by the Georgia General Assembly are inadequate.

In its current condition, HR 1306 falls short of providing strong constitutional reform because it does not contain a clear prohibition against the use of eminent domain for private development. Although it states that property can only be condemned for redevelopment if it is “blighted,” it ties the definition of blight to that found in the Georgia statues. Thus, in the future, if that definition is changed to once again make it vague and overly broad, the constitution will not be able to stop cities and towns from approving condemnations under that definition.

12 comments

  1. larry smith says:

    The Libertarian party does not live in reality, hence its complete failure to ever achieve anything in terms of electoral results, other than shooting its natural allies in the back.

    In this case, we have Libertarians attacking the strongest piece of ED legislation in the U.S. by saying it isn’t strong enough. In reality this is a good bill, and I would say a great bill, in terms of the political reality that there was significant opposition to its passage in its current form.

    So, I have this suggestion for our friends at I of J … go back to reading Ayn Rand and whining about collectivism, and leave real politics to people who understand it.

  2. JaseLP says:

    “Larry”

    I’m sure these people know eminent domain legislation and how strong it has to be considering that they argued the Kelo case.

    “leave real politics to people who understand it.”
    I think that is the problem. Most of the people who we’ve elected aren’t grounded in any sort of reality.
    These politicians are at the beck and call of the Georgia Municipal Association and the Atlanta Regional Commission, who are responsible for the Stockbridge eminent domain issue.

    There are holes in this bill big enough to drive a truck through. Our elected representatives let the property owners of Georgia down.

  3. Jack S says:

    My understanding is that the bill does allows some use of eminent domain for redevelopment purposes but only by elected officials and not appointed boards. the bottom line is that if an elected board oversteps their bounds the voters will boot them out and they’ll correct it. It’s an incredibly strong bill.

    I love how the vocal but very small radical minority always cries the same tune when they lose – oh, we should pass laws becuase the voters can’t be trusted. Baloney. It’s a great bill – despite the radicals dissents.

  4. JaseLP says:

    Since the Institute for Justice argued the Kelo case, I assume they’d know what has to happen in order to secure real protection for property owners. You can’t just write them off as “the vocal but very small radical minority.”
    They are the authority on the issue.

    Take a drive down to Stockbridge and visit Stockbridge Florist & Gifts or even call them. Tell Mark Meeks that he is part of a “very small radical minority.” I know the man personally, he doesn’t even know if he is going to be protected under the new laws.

  5. larry smith says:

    Jason,

    I respect that you’re a principled guy and I agree with you on the issue. I just think getting 80% of something is better than 100% of nothing. And, by anyone’s measure, HR1306 is a dramatic improvement over the status quo.

    If, as you suggest, ED opponents had taken an absolutist position that no siezures should be allowed in cases of blight, the bill would have been DOA. That’s reality, like it or not.

    And, as far as IofJ goes, the only reason it isn’t part of the LP formally is that Libertarians (and I consider myself one philosophically) have never been able to stop fighting with each other long enough to play on the same team.

  6. larry smith says:

    Jason,

    I wouldn’t trot out the argument that IofJ’s performance in Kelo is something to brag about. They scored the biggest loss for property owners of this decade in Kelo by losing a case that set a precedent we’ll be fighting for decades. As a property owner, I really hope they stick to sending out meaningless letters and stay out of the courtroom.

  7. JaseLP says:

    “I respect that you’re a principled guy and I agree with you on the issue. I just think getting 80% of something is better than 100% of nothing. And, by anyone’s measure, HR1306 is a dramatic improvement over the status quo.”

    Thanks. I’ve been involved in the Stockbridge issue for almost a year. I’ve gotten to know the Meeks on a personal level. I take this issue very seriously since I’ve seen the effects that it’s had on this family.
    However, as much as I hate to say it, if 80% reform doesn’t protect then it was done in vain.

    “And, as far as IofJ goes, the only reason it isn’t part of the LP formally is that Libertarians (and I consider myself one philosophically) have never been able to stop fighting with each other long enough to play on the same team.”

    I’m not going to argue with you there, because you are right.

    I also doubt that the IJ’s performence had anything to do with the outcome of the Kelo case and more to do with the political philosophy of the five justices ruling in favor of the City of New London.

  8. UGA Wins 2005 says:

    Jason:

    The fight is not over. There will be more days to repeal the Kelo decision. But for now, take this bill as a step good step forward and work with the system rather than being so critical.

  9. JaseLP says:

    UGA Wins 2005,

    Contact your representatives and tell them to go back and reconsider Chapman’s amendment. Then I’ll stop being critical.

  10. HJ Bailey says:

    Just keep in mind, this is a step in the right direction; however, if it were not for the House last year, we would have had SB 86 which truly would have been the toughest anti-eminent domain legislation ever.

  11. Groseclose says:

    As a disclaimer, I generally adhere to Justice Thomas’ view of the Taking Clause which he expressed in the Kelo dissent. Nonetheless, because the Supreme Court has refused his logic in cases like Midkiff (remember O’Connor and Rehnquist were part of that unanimous court, and then switched on Kelo), I see little imminent hope that Kelo will be overruled (this somewhat depends on Stevens’ future). Rather, the court reiterates its legislative deference on “legitimate exercise of police powers

  12. truthorconsequences says:

    Please be sure to be clear about which bill is which. It is important to remember that HR 1306 is the Resolution (Constitutional Amendment). In fact, the Constitutional Amendment does almost nothing because it totally defers to the statutory language.

    In the version that passed the House, the language, as the Institute for Justice letter stated above, deferred the definition of blight totally to statutory law. When people went to the ballot box, they would have read the following: “Shall the Constitution of GA be amended so as to prohibit the use of eminent domain by certain nonelected authorities and to prohibit the contested use of eminent domain for redevelopment purposes except to eliminate harm to a community from blighted property as defined by general law?” That was as straightforward as it got. There still was no prohibition on property being transferred to private developers nor was there an overarching principle in the C.A. that set the bar for blight. But, at least people knew they would be voting for blight to be a reason for the use of eminent domain.

    From this point, the language, though reading better, is actually worse as it passed the Senate – still talking about HR 1306. No longer will people realize, when they vote on the Constitutional Amendment, that blight is included in the definition of “public use.” The new language, offered at the last minute by a senator who has been totally uninvolved in the process, now obfuscates the matter entirely. Now the C.A. reads: “Shall the Constitution of GA be amended so as to prohibit the use of eminent domain by certain nonelected authorities and to prohibit the contested use of eminent domain except for public use as defined by general law?” This type of ballot question now FOOLS the public. Plus, the definition of “public use” now becomes open to legislative tinkering at anytime without limitation by the Constitution. Before it was blight that was open to legislative tinkering. This raises the stakes quite a bit higher to the detriment of the public.

    Now, on to the matter of HB 1313. As that bill left the Senate, it had actually improved. Senate Judiciary had done a good job of making improvements and more amendments on the floor made additional improvements. Now, as the Conference Committee is tinkering with it, thus far the reports from there are not heartening. They should have left it exactly as it was when it passed the Senate. The House and certain lobbyists have been the biggest problem in constantly trying to undermine this process of passing good legislation to protect private property rights. Had it not been for the House, the momentum would have totally favored a policy direction that would have allowed Georgia to pass the best property rights protection in the nation by adhering to the recommendations of the Senate Study Committee’s report.

    It appears that Groseclose in comments above understands what is at stake in this effort. Case law is now at a dangerous point. The 1954 Berman v. Parker case set the new “constitutional standard” for public use for our current day. Midkiff built upon that. Kelo builds upon Midkiff. At this point, efforts for the C.A. in GA allows a foundation to be built upon Kelo. The statutory law, as it passed the Senate, at least turned the constitutional clock back to 1954 and was still just a foundation to build upon Berman v. Parker. It even went just a few ticks of the clock back before Berman v. Parker, since in HB 1313 whole areas cannot be condemned but properties must be dealt with on a case by case basis. But, who knows what will happen when it comes out of Conference later tonight or tomorrow!

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