Michigan 2006 Ballot Proposal 4 - Eminent Domain. (NO)

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In general, I'm skeptical of Constitutional amendments. Ballot proposals in general are suspect - why vote yes on this particular solution? Is it the best solution, or just the first one that well-intentioned supporters put together without considering the consequences? Beyond even that, I tend to see the Constitution, whether of Michigan or the United States, as something that's supposed to change only very slowly. Why is the Constitution the proper place to make this change, and not the legislature? Or the judiciary, if the problem meant to be fixed is a matter of bad law? Any Constitutional amendment put before me, therefore, has a high burden of proof to meet before I even consider the content.

That said, Michigan's ballot proposal 4 this year seems like a clear winner. I expect it'll pass by a large margin - but it won't have my vote. It's a completely unnecessary and unjustified amendment.

This is only one of dozens of Kelo backlash items across the country. That Supreme Court decision found that "nor shall private property be taken for public use, without just compensation" allowed States to define economic development (increasing tax base, creating jobs, etc) as a "public use", thereby enabling condemnation of property for transfer to private developers; the nation's property rights movement has kicked into high gear, frightening people with the idea that their homes could be forcibly bought by the government to build a shopping mall.

I'm no fan of eminent domain. Takings should be used only sparingly, and not for mere economic development. But this is a solution in search of a problem. Two years ago, the Michigan Supreme Court found, in Hathcock v. County of Wayne, that this kind of takings for economic development was not allowed under the Michigan State Constitution. The piece of this proposal that might actually merit Constitutional amendment would be redundant - the Constitution is fine the way it is.

There are other pieces of this proposal that I think are good, but these are material for the Legislature, and not for amendment. One is the provision that, if the property to be taken is the owner's principle residence, "just compensation" will be 125% of fair market value. I have always held that the value to you of your home is higher than the market value - otherwise you would have sold already. This is an exceedingly minor issue of statute. The other is the matter of who holds the burden of proof regarding the "public use" at hand. Currently, the individual must prove that the taking is not for a public use; this would make it the government's burden to show that the taking is. In some cases, this is not any trouble - if the land taken is to build a road, or rail, or school, or police station, or park, it is clearly a "public use". Other, fuzzier uses of eminent domain should be difficult.

Really, I don't object to any particular piece of this ballot proposal. I will be voting no, however, because it I consider this poor and clumsy public policy. As the Detroit News states, "There is a need to balance property rights against public needs. Michigan has a definitive court ruling setting the standards. If lawmakers want to bolster that with a statute, they are free to do so, but the constitutional amendment in Proposal 06-4 is not the way to go. Vote No." (Entertainingly, I appear to be a staucher defendant of property rights in this case than the News - they seem to think that the 125% bit is unreasonable.)

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More fuel for the fire

As a planner it will be no surprise that I agree with you. However I do so for slightly more nuanced reasons.

Many/most of the provisions in this proposal have already been passed into law this legislative session in Lansing. The 125% compensation, public use vs. public purpose, etc. have all been set into law by an odd combination of liberal and conservative/libertarian lawmakers: Steve Tobocman (D-Detroit), Leon Drolet (R-Macomb Township), and John Garfield (R-Rochester Hills). At the end of this MLUI article, Tobacman (someone I know personally and can vouch for his card carrying liberal status) states that he is sorry to see Leon Drolet leaving. I've met and conversed with Drolet before and the guy's hard cores conservative-for-no-other-reason-than-being-conservative views make me want to puke. How they became friends is a miracle.


The reason I don't support the proposal is because I think the legislative process has already taken care of things. I agree with the 125% because in Detroit there are folks with property valued so low that there is no where they could move to for $40,000 or $6,000 (the fair market value of their property)