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Eminent domain appeal window unclear

On Oct. 22, Secretary of State Delbert Hosemann certified that Farm Bureau’s petition to eliminate the use of eminent domain for private development had enough signatures for the initiative to appear on the statewide ballot in 2011.

Hosemann’s certification amounts to an administrative ruling, and if Mississippi’s rules for administrative appeals apply, any legal challenge to Farm Bureau’s initiative would have to be filed within 30 days.

Figuring out if they do is the hard part.

Sen. Joey Fillingane, R-Sumrall, thinks any legal challenge would have to come within that 30-day window. Fillingane, chairman of the Senate Judiciary A Committee, was heavily involved in the state Republican party’s effort to put the issue of voter identification on the 2011 ballot. Hosemann certified that initiative March 8. On April 7, Fillingane said, the initiative was in the clear.

“We assumed we were free of appeal after 30 days,” he said last week.

What could cloud that assumption for the eminent domain initiative is the Mississippi Constitution, which forbids having its Bill of Rights modified or repealed by an initiative. Within the Bill of Rights is a clause that demands fair compensation for the taking of private property.

“The tricky issue for me is this: If in fact the (proposed eminent domain law) would be unconstitutional, it could certainly be raised down the road as a void matter,” said Matt Steffey, professor of law at the Mississippi College School of Law in Jackson.

“Let’s assume this thing goes forward and is passed as a voter initiative. A provision at odds with the Constitution is void and unenforceable. Even if somebody misses a window to challenge at this point, it would almost certainly be subject to challenge down the road should the voters adopt it. At the time at which it gained legal effect, people could challenge it then as unconstitutional. In other words, the failure to abide by administrative appeal requirements doesn’t move constitutional objections.

“It doesn’t turn an unconstitutional act into a lawful one,” Steffey continued. “It can still be challenged, but only if it’s passed by the voters. The (30-day timeframe for appeals) may be true, but in this case, it doesn’t really matter.”

What complicates any decision to challenge eminent domain post-election day is the political ramifications. If voters approve the initiative, challenging it would amount to “political suicide,” said a source who spoke to the Mississippi Business Journal on the condition of anonymity.

In the 2009 legislative session, Gov. Haley Barbour joined business associations, trade groups and economic development organizations in opposing legislation that would have accomplished something similar to what Farm Bureau seeks with its initiative. Barbour vetoed that bill, and his veto was narrowly sustained in the State Senate.

Barbour’s spokesman Dan Turner said in early October that “all options are on the table” when he was asked if the governor would consider challenging the initiative on the grounds that it would change the state Constitution’s Bill of Rights by an lawful method.

That was the argument a Jackson attorney used to seek to stop the personhood initiative, which seeks to define the beginning of life as the moment of fertilization. Last week, a Hinds County judge ruled the initiative could move forward because it had gained enough signatures to do so.

The challenge to the personhood initiative was filed within 30 days of Hosemann certifying it.

Turner said last Wednesday afternoon that he was unaware if Barbour was operating under the assumption that, if he wanted to, he would have to file a legal challenge to the eminent domain initiative within 30 days of Oct. 22.

“I don’t know where that stands right now,” Turner said.

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About Clay Chandler

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