On eminent domain, new complications have come up: Huntsville (AL) Times, 3/5/06


By John Ehinger

Is there such a thing as legal overkill? If you have one law against something - murder, for instance - do you need more laws against it?

Actually, you might - at least sometimes.

Take Alabama's law limiting the use of property condemnation. The law was passed last year after the U.S. Supreme Court said states could condemn property for private resale and reuse. But the court stipulated that states could limit such actions as they saw fit.

So Alabama passed its statute to keep people's homes and land from being taken for such things as shopping centers, restaurants and industries.

Giveth and taketh
But some people didn't think the law went far enough. After all, what the Legislature giveth, the Legislature can taketh away. So they proposed a constitutional amendment. That way, such restrictions would be imposed by the voters and could only be repealed by the voters.

Now, as the debate continues in the Legislature, citizens are treated to the odd spectacle of some special interests saying the law goes too far and others saying it doesn't go far enough.

At the core of the proposal, there's seemingly not much wiggle room. But because the amendment would allow condemnation and private reuse of "blighted" property, a debate arises over what "blighted" means. To tell you the truth, I don't know.

And last week one cattle farmer said the proposal didn't go far enough, that it was laden with special-interest goodies. Meanwhile, an attorney for the city of Birmingham said the proposal in its current form would harm beautification efforts. Again, I have no idea what he was talking about.

In the face of such contradictory objections, I might be tempted to say leave well enough alone. Alabama has a law and that should suffice.

But I can also think of some loopholes. Private firms that want to build toll roads have in the past asked the Legislature for the power of eminent domain. (Otherwise, they couldn't build their roads.) Under the 2005 law, nothing would prevent the Legislature from amending the language to allow that.

And I cannot deny the reality that eminent domain is broader than it used to be. The federal government, for example, has given condemnation powers to private energy companies to build such things as electrical transmission lines, oil pipelines and natural-gas terminals.

Who might get special powers next? New-car dealers? Drug companies? Shouldn't someone draw a line somewhere?

In addition, I don't know whether we are to trust the Legislature to impose limits on eminent domain by statute alone. Historically, the Legislature has often played favorites on matters both serious and trivial. (Alabama still has an official state whiskey, even though the owner of the company was charged later with bootlegging.)

At the same time, the public might wonder about cities and counties fighting the limits on condemnation when many of those cities and counties complain daily about the lack of home rule and how the Legislature controls everything.

The case for caution
Public seizure of property ought to be for a public purpose, period. Blighted urban areas can be dealt with in ways that do not take someone's property and sell it to someone else.

Even so, unless the constitutional amendment can be done right, we shouldn't do it at all. Otherwise, we'll be doing it again and again (isn't that the history of the Alabama Constitution and its 700-plus amendments?) with lawsuits resulting from every change.

Taking the new law, restating it in constitutional amendment form and then submitting it to the voters shouldn't be this difficult. I guess it just shows why so many other persistent problems plaguing this state are so damnably difficult to solve.

The Huntsville Times: www.al.com/opinion/huntsvilletimes