Eminent domain for a veto: Rocky Mountain News (Denver CO), 6/2/05

By Vincent Carroll

When legislation sits on the governor's desk for a long time without his signature, it's often a sign that he has misgivings about it - and very possibly that it's destined for the scrap heap. If such becomes the fate of Senate Bill 230, which bars private toll-road companies from condemning property on their own, it would be the strangest veto of the year.

SB 230 is a no-brainer for anyone who resents the increasing use of eminent domain to line the pockets of private businesses. Usually, of course, local and state governments direct this scheme in which property is seized in the name of a higher economic use. They condemn Peter's house on Paul's behalf because Paul says he needs the land to build a shopping center, manufacturing plant or sports arena.

In Colorado, however, the Front Range Toll Road Co. would even like to dispense with the use of a government enforcer. It cites a 19th century statute apparently authorizing private toll companies to condemn property on their own. No fuss. No hearings or other irritating bows to public opinion. The highway goes here, buster, right through your ranch. Got a problem with that?

Admittedly, highways are the sort of basic infrastructure - unlike a sports arena or shopping center - for which the power of eminent domain was invented. But the vast majority of states that encourage private enterprise to build toll roads do not delegate the power of condemnation, too. They require the toll company to enter into a partnership with the state first.

The 14th Amendment to the U.S. Constitution states, in part, "nor shall any state deprive any person of life, liberty, or property, without due process of law." Yet as attorneys Allan Hale and Robert Hoban point out in a legal analysis on behalf of those urging the governor to sign the legislation, "there is a tremendous distinction between the exercise of eminent domain by a government unit vs. a private entity" because the latter "cannot conceivably comply with this due process requirement."

In short, the 19th century law is unconstitutional on its face. But why wait to see if the courts agree?

Rocky Mountain News: www.rockymountainnews.com