Big Sky Blog

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The beauty of work depends upon the way we meet it-whether we arm ourselves each morning to attack it as an enemy that must be vanquished before night comes, or whether we open our eyes with the sunrise to welcome it as an approaching friend who will keep us delightful company all day, and who will make us feel, at evening, that the day was well worth its fatigues. Lucy Larcom

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Oh – and after you’ve hit the “Publish” button and taken a look at your entry and found an error — just go back to the screen and select “EDIT” to find your entry and make any changes…and then press SAVE to re-publish your entry. And if you really get stuck, just drop me an e-mail (davidmsc @ gmail.com) and I’ll help you out.

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Article II, Section 29: Eminent domain. Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails.

The big important section of Montana Code Annotated dealing with all this is the Eminent Domain section in Title 70, Chapter 30. The public uses for eminent domain are therein specfcally enumerated. Note the huuuuuuuge number of cross-references there. For every use (athletic stadiums, cemeteries, flood control, etc.) there’s a corresponding section that then specifically lays out what has to be done to use ED for each issue.

But to get to the nasty stuff, you have to look at 70-30-103: What property may be taken. (1) The property that may be taken under this chapter includes: (a) all real property belonging to any person… and (2) All classes of private property not enumerated may be taken for public use when the taking is authorized by law. But then they clarify that further in 70-30-110:

70-30-111. Facts necessary to be found before condemnation. Before property can be taken, the condemnor shall show by a preponderance of the evidence that the public interest requires the taking based on the following findings:
(1) the use to which the property is to be applied is a use authorized by law;
(2) the taking is necessary to the use;
(3) if already being used for a public use, that the public use for which the property is proposed to be used is a more necessary public use;
(4) an effort to obtain the property interest sought to be taken was made by submission of a written offer and the offer was rejected.

There are a couple of additional references to ED throughout the MCA, mostly in Title 60, Chapter 4 on Highways – but here, those references are to restrictions. For example, we have Title 60, Chapter 4, Part 103, purposes for which property may be acquired for highways, in which it states that:

The acquisition of lands or other property or any interest therein for present or future highway purposes includes but is not limited to any of the following purposes:
(1) for rights-of-way, including those necessary for highways within cities;
(2) for exchanging lands or other property or any interest therein for other such lands or interests for rights-of-way or other authorized purposes. The right of eminent domain shall not be exercised for this purpose.
(3) for …..

Frankly, all of this isn’t nearly as restrictive as I would like it to be. And that’s in a state like Montana. The place to start here would be in 70-30-103. You’d either have to cull that list, or go to each cross-referenced section of code and limit use of eminent domain in that section (like they did with highways). Our legislature only meets once every other year for a few months. I can’t imagine how long it would take to make all the necessary changes in the laws there. This is why I had hoped that the SCOTUS would define the takings clause more narrowly than they did – I just think “economic development” is too vague and broad to be the limiting factor in eminent domain cases. And no, I don’t think you have to be a lawyer or a judge to figure that out – our laws and Constitution are “for the people, by the people.” We really are smart enough to “get” this concept. It has been pointed out that in his tiebreaker concurrence, Kennedy left a loophole in there about not being able to speculate on future cases of the same nature. The idea being that he was indirectly warning cities not to run with the decision, because the court might be inclined to hear other similar cases. But if you ask me, that’s a wussy-assed pansy way of saying “hey, I didn’t COMPLETELY agree with this!”

Back to the question at hand. Starting on a broader level…

Wiki says:

The Supreme Court has held that the federal government and each state has eminent domain, that is to say, the power to take private property. The Fifth Amendment provides that private property may only be taken for public use if just compensation is paid. The provision did not, originally, directly apply to the states. Like all clauses except the grand jury clause, use is up to determination by the courts, which have, however, shown much deference to the determinations of Congress and state legislatures. The property need not actually be used by the public; rather, it must be used or disposed of in such a manner as to benefit the public welfare or public interest. One exception that restrains the federal government is that the property must be used in exercise of the government’s enumerated powers.

To properly begin speculating on how to phrase a State Constitutional Amendment, I think maybe my emphasized sentence there is the starting place. I don’t know enough about how that’s applied to the fedgov. Perhaps similar restrictions can be placed on the State? But I need a better understanding of enumeration in that respect.

Wiki goes on to talk about what’s done in other countries:

In many European nations, the European Convention on Human Rights provides protection from appropriation of private property by the state. Article 8 of the Convention provides that “Everyone has the right to respect for his private and family life, his home and his correspondence” and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of national security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the First Protocol to the Convention, which states that “Every natural person or legal person is entitled to the peaceful enjoyment of his possessions.” Again, this is subject to exceptions where state deprivation of private possessions is in the public interest, is in accordance with law, and, in particular, to secure payment of taxes.

And even that (emphasized) can be very broadly interpreted. I just don’t even know where to start. Alternatively, you could try to get a federal Constitutional Amendment to more narrowly define the situations under which eminent domain can be used. But again, where to begin? If you got thoughts on the matter, I want to hear them.

By the way, if you want to read the actual opinions, concurrence, and dissents on Kelo, they are here.

Disclosure: I am not a lawyer, nor do I play one on tv.

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