Good news on the eminent domain front, although not directly
affecting NC. Oklahoma’s Supreme Court has held that its
constitution and eminent domain statute don’t allow for economic
development takings.
The opinion,
as it relates to the state constitution, seems to be influenced by the
fact that the constitution doesn’t give deference to the legislature on
the meaning of “public use.” Their constitution says: “[in] all
cases of condemnation of private property for public or private use,
the determination of the character of the use shall be a judicial
question.” This provision is needed for any state constitutional
amendment in NC. This relates to the discussion yesterday about
deference in property rights cases.
Two express reasons for the court’s holding, as it relates to its state constitution, also are instructive for NC:
1)
It is important to expressly prohibit takings for a private use: “While
the Takings Clause of the U.S. Constitution provides ‘nor shall private
property be taken for public use without just compensation,’ the
Oklahoma Constitution places further restrictions by expressly stating
‘[n]o private property shall be taken or damaged for private use, with
or without compensation.'”
2) Clearly define and limit what
public use means: “The proposed purpose of economic development, with
its incidental enhancement of tax and employment benefits to the
surrounding community, clearly does not fall within any of these
categories of express constitutional exceptions to the general rule
against the taking of private property for private use.”
NC needs
a constitutional amendment, however we need one that is carefully
crafted. This case provides some helpful guidance.
Hat Tip: John Branch
