Lawmakers to face eminent domain issue: Bangor (ME) Daily News, 8/8/05

Maine lawmakers will be asked to clarify state law to ban the taking of private property through eminent domain for private economic development - a power that was authorized by the U.S. Supreme Court in a Connecticut case.

"This has pricked the nerves of a lot of Maine people," said Sen. Barry Hobbins, D-Saco, co-chair of the Legislature's Judiciary Committee. "We need to look at what needs to be done to make sure that can't happen in Maine."

The U.S. Supreme Court, ruling 5-4 in June, said local governments may force property owners to sell out and make way for private economic development when those local governments decide it would benefit the public.

The justices also made it clear the states could ban such practices.

"Of course we should ban this," Rep. Henry Joy, R-Crystal, said Friday. "I have had people come up to me and ask, 'What is this country coming to?' People are really upset about this ruling, and I think the court made a mistake."

Joy said he would ask legislative leaders to allow consideration of legislation that would clearly ban such activity in Maine by state or local government.

State Attorney General Steven Rowe sent what he called an "informational" letter to lawmakers July 22, explaining the court decision and what he believes it will mean for Maine.

"It is not an opinion," Rowe said last week. "We were not given a set of facts that we could apply and give an opinion [on]. My letter was a response to requests for information I had received from a number of members of the Legislature."

In his letter and in a subsequent interview, Rowe stressed Maine's constitution has language dealing with the issue that differs from the federal constitutional provision.

He also said there have not been many state supreme court rulings interpreting that language.

"I think the attorney general is correct," Hobbins said. "I don't think anyone can say what would happen in Maine with a similar case to the one in Connecticut."

Hobbins, an attorney, has had cases dealing with eminent domain, but he said cases in Maine have mostly dealt with compensation for land taken, for example, to build a road. He said the sort of "take private land to build a Wal-Mart" case has not occurred in Maine.

Joy said the attorney general's letter was only Rowe's view, "and I think this needs to be clear."

A private development taking could occur in Maine, Joy said, "and we need to make sure it can't happen."

Rep. Deborah Pelletier-Simpson, D-Auburn, Hobbins' Judiciary Committee co-chair, said the committee will review eminent domain legislation carried over from the spring session of the Legislature. She said Mainers are not totally without some legal protection under current state law.

"It seems clear that you can't have your home taken without your permission," she said, "but we have to look into the other areas."

She said that law may not provide protection for someone owning land that a city or town may decide it wants for economic development.

The committee has two bills before it, but both deal with compensation for takings under eminent domain proceedings.

Both committee leaders believe the wider issues can be discussed and a bill introduced if the panel decides legislation is needed.

"We may have to draft specific legislation," Hobbins said, "but I don't know that is needed until we review all of the laws involved."

Rowe has provided lawmakers with a list of 68 state laws dealing with the power to take private property. They range from giving the governor power to take property for national defense to allowing local cemetery districts the power to take land for cemeteries.

Maine is not alone in considering changes. The Washington, D.C.-based Institute for Justice has determined 21 states have already banned takings for private purposes, or are considering changes in state laws.

In addition, lawmakers in Texas, Florida, Oklahoma, New Jersey and Michigan are considering constitutional amendments prohibiting eminent domain for private development purposes.

Bangor Daily News: www.bangornews.com