Speed suit: Eminent domain vote repeals constitutional protections

Leland Speed concedes he may be relying on a “technical violation” in a lawsuit to stop a statewide vote on banning the use of eminent domain to take private property.

But he’s got to do whatever he can to keep a “dumb” result from occurring, said Speed, a longtime Jackson real estate investor and now interim head of the Mississippi Development Authority.

Like almost everyone else in the state, Speed expects the ballot initiative to outlaw the taking of private property for private purposes would win overwhelmingly. That’s why Speed said he is working so hard to keep the vote from happening, though he emphasized he is suing as a private citizen — not an MDA official.

“It’s such an emotional issue — protecting people’s property rights. Who can be against that?”

On the other hand, said Speed, “Mississippi just can’t eliminate itself from major economic development. It just doesn’t make any sense.”

The speed in which the Mississippi Farm Bureau and other organizers collected the more than 119,000 signatures to qualify for the ballot is a clear sign of how Mississippi voters see the measure, though Speed said he does not think “people have really focused on this thing.”

That would be news to referendum proponent Ron Aldridge , state director of the National Federation of Independent Business. “I think they have heard the people speak,” Aldridge said, citing the 119,000-plus signatures and the parade of 2012 statewide political candidates who have joined in pushing for the constitutional change.

Mississippians, Aldridge said, have been worrying about the taking of their property by private enterprise ever since the U.S. Supreme Court’s “crazy 5-4 decision in Kelo that took that right away.” The 2005 ruling in Kelo vs. the City of New London upheld the constitutionality of the taking of private property for economic development purposes.

Speed’s attorney, Fred Banks of Jackson, will argue at a Circuit Court hearing July 25 that initiative organizers failed to meet rules for changing the state’s governing document.

In listing supposed constitutional violations, Banks said the state constitution forbids using the ballot initiative for “the proposal, modification or repeal of any portion of the Bill of Rights of the (Mississippi) constitution.”

This limit on the ballot initiative is designed to keep “majoritarian impulses” from trampling on the rights of individuals, minorities and separate regions of the state, Banks wrote in his filing.

To trump this protection, approval of two-thirds of each house of the Legislature would be required, along with a majority popular vote, Banks said.

Banks addresses the role of the judiciary in his final claims of constitutional flaws. The ballot initiative amounts to a “modification” that unlawfully removes judicial control of the determination of what is a “public purpose” for the taking of private property, he said.

Further, Banks said, the ballot initiative amounts to a “repeal” of a provision of the Bill of the Rights by prohibiting a court from determining that certain economic development projects were for a “public use.”

In detailing why a need for relief exists, Banks said passage of the eminent domain limit would keep a property owner who wanted to sell from doing so. “It will in fact take away sale opportunities from many owners,” he said.

He also warned that that if the initiative process can be used to modify or repeal property tights, “it could be used in the future to take away those rights if a popular majority chose to do so.”

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