Don't falter on eminent domain: Charleston (SC) Post & Courier, 6/11/06

Editorials - Opinion

We're told there's still a good chance that South Carolina voters will get the opportunity this fall to ensure that a government can't use its power of eminent domain to take property from one private citizen and transfer it to another private party under the guise of a so-called 'public purpose.' That actually happened last year in Connecticut and was sanctioned by the U.S. Supreme Court because it was allowed by that state's law. Putting a constitutional amendment on the ballot to make certain it never happens in this state should be an obvious priority when the Legislature returns to Columbia on Wednesday.

Charleston Sen. Chip Campsen is a member of a conference committee working on a House-Senate compromise. Under consideration is a three-part proposal that includes the constitutional amendment and an accompanying new state law that would carry out the intent of the amendment if it is approved in November. The senator also noted that the constitution now allows slum clearance in nine counties. Not only is it unclear why those counties were singled out for that authority, but he said the language needs to be tighter and a statewide policy established.

South Carolina lawmakers were among the first to express concerns after the controversial U.S. Supreme Court eminent domain decision last summer. The high court was careful to note that the decision only applied to those states that have statutes similar to Connecticut where property can be taken for a 'public purpose,' as opposed to a 'public use.' In the Connecticut case, the court stretched the definition of 'public purpose' to economic development and allowed a private developer to acquire private property the city had condemned.

Fortunately, to date in South Carolina, our Supreme Court has consistently ruled that the power of eminent domain can be employed only when there is a 'public use' involved. But Sen. Campsen is among those who point out that a change in the court's membership could eventually change that view. The current court's philosophy simply needs to be written into the constitution. Sen. Campsen said the language being considered would continue to allow the court to decide what constitutes 'public use' on a case-by-case basis. But it would prohibit the court from allowing condemnation for 'public benefit or public purpose' - phrases the Connecticut case proved could be far too broadly interpreted.

Despite the support for tightening the eminent domain provisions, passage unfortunately has been delayed primarily by an effort to include a highly controversial regulatory takings provision that would require compensation to landowners if the use of their property were diminished, primarily through zoning. But Sen. Campsen tells us he doesn't expect that battle to be renewed on Wednesday. Instead, that issue is expected to be carried over for study next session. 'I'm very optimistic,' he said about passage of the eminent domain package.

Failure to agree to the conference committee report would mean a two-year delay in allowing voters the opportunity to strengthen the state's protection of private property through a constitutional amendment. That would be inexcusable.

Charleston Post & Courier: http://www.charleston.net