Eminent domain — at least the government taking of private property on behalf of private enterprise — does not seem to offer much room for compromise.
You are either OK with the government taking private property for private sector economic development or you are not.
If middle ground exists, neither Leland Speed nor Ron Aldridge has found it.
Speed, interim chief of the Mississippi Development Authority, is suing as a private citizen to stop a Nov. 8 referendum that Aldridge and other supporters see as a sure bet to outlaw the taking of private property for private purposes.
Aldridge, a former state lawmaker and current state director of the National Association of Independent Businesses, says an amendment to the Mississippi Constitution will seal the property protections for generations to come. “I think everybody is much more secure when it is in the constitution,” he says.
The U.S. Supreme Court’s narrow 2005 ruling in Kelo vs. City of New London held New London acted within the Constitution in taking private property for economic development.
In Mississippi, the ruling heightened property rights fears left over from the state’s failed 2002 legal fight to take a 24-acre property from the Lonzo Archie family in Madison County, according to Aldridge.
Minus a new protection put into the Mississippi Constitution, “We don’t have another way in Mississippi to protect our property,” he says. “What we thought we had in our (U.S.) Constitution wasn’t what we thought.”
The proposed amendment limits the taking of private property to “public uses,” with any dispute over what makes a “public use” to be decided by the courts rather than the Legislature, Aldridge says.
Aldridge says 89 percent of his association’s members support the constitutional change.
The Institute for Justice, organizers of the Castle Coalition, lists a diverse group of organizations supporting eminent domain reform in Mississippi:
Mississippi Center for Public Policy, Southern Christian Leadership Conference, Americans for Tax Reform, Mississippi Loggers Association, Mississippi Forestry Association, Mississippi Cattlemen’s Association, Property Rights Alliance and National Taxpayers Union.
The Mississippi Farm Bureau, a trade organization and insurance provider, led efforts to get the issue on the ballot and is campaigning hard for the measure’s passage.
Backers of the ballot measure fear “we have to do something in Mississippi. Otherwise every piece of property in Mississippi is vulnerable,” Aldridge says.
Rather than letting market forces work, the state has found it more expedient, he adds, to let large companies “come in with their money and take our rights away.”
Aldridge acknowledges that Mississippi has been free of “eminent domain abuse” but insists the means are there for it to occur.
Under the Kelo ruling, he says, a big hotel could come into Mississippi and take over a smaller hotel, and state statutes allow a factory to come in and take over a farm. “All for the sake of more tax revenues or jobs,” Aldridge says.
Current Mississippi statutes set a threshold as low as 80 jobs for taking property, Aldridge says. “There’s also one in there that says if you have a $500,000 investment it comes under the act” and you can have a “quick take authority.”
Mississippi Development Authority spokeswoman Sally Williams says the agency has a “default definition” for what it considers a major economic development project that could trigger eminent domain. It would be a project that had “both” a $500,000 investment and created “at least 500 jobs.”
Without the $500,000 investment, the project would have to create 1,000 jobs.
“The state would never consider eminent domain for anything that at a minimum didn’t meet those criteria,” Williams said.
Aldridge says current law allows the taking of private property for “ancillary development” that occurs within three years of the major economic development’s start of commercial production. The ancillary development has no job requirement provision, according to Aldridge.
Aldridge says he and other Mississippi members of the National Association of Independent Businesses have long worried about the scope of the state’s 2000 statute enacted on behalf of Nissan. “Under the current act once you define a project area it includes a 65-mile area around it,” he says. “And if it touches any county, it includes that county.”
Mississippi has “thousands of acres” at industrial parks ready to be filled by mega employers, Aldridge says. “Let’s help them get those filled.”
Attorney Andy Taggart, a political blogger and former executive director of the Mississippi Republican Party, said he expects the use of eminent domain for economic development will end after Nov. 8. But he said he is not prepared to concede the state will pay a price in new jobs.
For one, he expects that over the next five years “virtually” all states will have some sort of prohibition. “I seriously doubt the premise that it is going to cost us economic development opportunities.”