Since the Kelo decision, Mississippi is 1 of only 7 states who has failed to reform eminent domain and protect a person’s right to keep and own property (See Susette Kelo’s video). However, there has been a tremendous amount of energy spent by a few ambitious politicians (Haley Barbour, Phil Bryant, Steven Palazzo, Bennie Turner) manipulating the language in bills and trying to trick voters into believing that private property rights are being respected in Mississippi.
They are not. In Mississippi your private property can be stripped from you at any time and be given to another private entity.
Here’s how the eminent domain scam works in Mississippi…
Article 3, Section 17 of the MS Constitution states that, whenever property is being taken by eminent domain, the question of whether it is a public use or not is a judicial question – not a legislative question. This was the “Constitutional” argument made by Haley Barbour, Steven Palazzo, and others (both Democrats and Republicans) when they voted down eminent domain reform (HB 803) in 2009.
Yet, every year these same ambitious politicians defy the Constitution, as well as their own argument against eminent domain reform through the legislative process, by using the legislative process to expand the powers of eminent domain for private use.
Section 17, Article 3 of the Mississippi Constitution:
Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public.
Here’s the most recent history of eminent domain legislation in Mississippi
HC 18 – Constitutional Amendment to add, “but private property shall never be taken for private economic development purposes;”. The Constitutional amendment is killed by Hob Bryan, Democrat – appointed as Chairman of the Senate Constitution Committee by Republican Lt Gov Amy Tuck.
Note about HC 18: Rep Steven Palazzo would not vote in favor of private property rights again until 2010 – one week before he announced he was running against (D) Gene Taylor and (L) Tim Hampton. He voted for the same language in the Constitutional Amendment in 2007 and 2010, that he voted against in 2008 and 2009. Yet, he espoused to be a defender of private property rights on the 2010 campaign trail. A lot of folks were misled or chose to ignore Palazzo’s record.
2/01/2007 and 3/14/2007
HB 1547 – Removed the requirement to obtain:
(a) A determination that the entity qualifies as one to which the Legislature has granted the power of eminent domain;
(b) A determination that the entity has complied with state law in invoking the statutory power of eminent domain; or
(c) A certificate of public convenience and necessity for the particular taking in question.
…from the “applicable state regulatory agency” or Federal Energy Regulatory Commission before eminent domain powers could be used.
HB 1209 – Would have allowed the state inland port authority to sell land, which was taken by eminent domain, back to the original owner or the children of the owner – even with a written statement by the state inland port authority that the property isn’t being used.
SB 2001 – added “powertrain component manufacturers” to the list of Mississippi Major Economic Impact Authority (MMEIA) projects in which eminent domain could be used to take property from one private owner and given to another private owner for private use. It also expanded “immediate possession” eminent domain powers. MMEIA was already given “immediate possession” powers by our legislature, but SB 2001 added to the list of MMEIA’s private projects in which “immediate possession” could be used and also granted “immediate possession” powers to “any county” for the use of roads, bridges, utilities, right-of-ways, etc to the new private development.
“Immediate possession” allows your property to be appraised and the title taken from you and given to another private owner within 5 days. You may still live in your home, or use your office or church, but the new owner can now legally enter your property against your wishes.
MS Immediate Possession Law: http://www.michie.com/mississippi/lpext.dll/mscode/173d/1ec2/1f4a/1f55?f=templates&fn=document-frame.htm&2.0#JD_11-27-85
Phil Bryant is sworn in as Lt Governor. He has the responsibility of appointing Chairs of Senate Committees. Phil Bryant, Republican, chose Bennie Turner, Democrat, as Chairman of the Senate Constitution Committee. No Constitutional Amendment to limit eminent domain between 2008 and 2010 has made it past his desk.
HB 591 – Would have restricted eminent domain powers to only be used for real public use (roads, bridges, utilities, rights-of-way, government buildings)
HC 24 – Constitutional Amendment to add, “but private property shall never be taken for private economic development purposes;”. The Constitutional Amendment is killed by Bennie Turner, Democrat – appointed as Chairman of the Senate Constitution Committee by Lt Gov Phil Bryant.
2/27/2008 and 4/27/2008
HB 342 – Previously, municipalities could only demolish abandoned houses where drugs were being used or sold. This bill allows them to seize the entire property. (The issue is not that drugs are bad for the neighborhood since demolishing the house would solve the drug problem on the property. The issue is that confiscating the house and land goes too far and doesn’t do any more to prevent the use of drugs in an abandoned house than if the house was demolished.)
HB 12 – Expanded MMEIA’s eminent domain powers to allow the Dept of Homeland Security to build the National Bio and Agro-Defense Facility
SB 2605 – Expanded MMEIA’s eminent domain powers to take private property for existing manufacturing plants
HB 803 – Eminent domain reform…
A vote in favor of HB 803 would have limited eminent domain powers to be used only for real “public use” (ie – roads, bridges, ports, dams, levees, and utilities). It would have disallowed the use of eminent domain for the purpose of taking property from one person and give it to a corporation or any other non-governmental entity. The bill passed the House. Steven Palazzo voted against it. It passed the Senate, but was vetoed by Gov Haley Barbour. His veto was overriden in the House. Again, Steven Palazzo voted against private property rights when he voted to sustain Governor Barbour’s veto. The Senate voted to sustain Barbour’s veto and HB 803 died.
Ultimately, the purpose of HB 803 was to force the issue to the Supreme Court where they would have to side with the MS Constitution. The Supreme Court would have to rule that when property is taken through eminent domain, whether it will be taken for real public use or not is in fact a judicial question according to the MS Constitution. The MS establishment (both Democrats and Republicans) has defied the MS Constitution by using the legislature to define and redefine “public use” in order to expand eminent domain. Yet, when given the chance to strengthen private property rights by limiting eminent domain powers, Haley Barbour, Steven Palazzo, Billy Hewes (2011 candidate for Lt Governor) and a few other Democrats and Republicans conveniently decide to abide by the Constitution. They are all frauds.
These over-reaching eminent domain laws enacted by the legislature are unConstitutional. Because the laws are unConstitutional – they are illegal. When a property owner is threatened under illegal eminent domain laws – the threat to steal a person’s private property should be considered a criminal act.
HB 1628 – Expanded MMEIA’s eminent domain powers to confiscate land for “composite component manufacturers in the aerospace industry”
HC 33 – Constitutional Amendment to add, “but private property shall never be taken for private economic development purposes;”. The Constitutional Amendment is killed by Bennie Turner, Democrat – appointed as Chairman of the Senate Constitution Committee by Lt Gov Phil Bryant.
HC 26 – Constitutional Amendment to add, “but private property shall never be taken for private economic development purposes;”. The Constitutional Amendment is killed by Bennie Turner, Democrat – appointed as Chairman of the Senate Constitution Committee by Lt Gov Phil Bryant. This is the same bill Steven Palazzo voted against in 2008 and 2009 – both non-election seasons. However, he voted in favor of it less than 1 week of announcing his candidacy to replace Gene Taylor.
Rep Steven Palazzo announces his candidacy for US Congress on The Paul Gallo Show. A few months later he would run TV ads claiming, as a MS legislator, he supports private property rights. In fact, no legislator in the State of Mississippi has voted against a person’s right to keep and own property more than Steven Palazzo. Mississippi folks were duped.
HB 918 as Introduced – Would restrict eminent domain powers to only be used for real public use (roads, bridges, utilities, rights-of-way, government buildings)
HB 918 Committee Substitute – Would allow MMEIA to retain it’s eminent domain powers and would mandate that all takings for MMEIA projects would be subject to Judicial review. However, since the MS Constitution doesn’t define “public use”, and since the Kelo decision stated that economic development and tax revenue can be considered “public use”, the courts would rule that taking property from one private owner and giving it to another private owner is Constitutional. So again, this bill would not have limited eminent domain abuse.
SB 3189 – Expanded MMEIA’s eminent domain powers to confiscate land for solar panel manufacturers
9/30/2010 – Initiative 31
David Waide, President of Mississippi Farm Bureau Federation, delivered Initiative 31 to the Secretary of State’s office. The amendment will appear on the ballot in 2011. However, the legislature can decide to provide alternative amendments to go on the ballot and voters (if the language of the bill doesn’t confuse voters into leaving the ballot blank, thus, invalid) will be able to vote for the amendment of their choice. The most popular amendment will be added to the MS Constitution, so long as it gets at least 40% of the vote, but will not replace the eminent domain language in Article 3, Section 17 of the MS Constitution.
The truth is that the language in Initiative 31 is still against private property rights and still favors eminent domain abuse. It does not address the issue of using eminent domain to take property from one private owner and giving it to another private owner for private development.
The amendment reads:
“No property acquired by the exercise of the power of eminent domain under the laws of the State of Mississippi shall, for a period of ten years after its acquisition, be transferred or any interest therein transferred to any person, non-governmental entity, public-private partnership, corporation, or other business entity.”
So, the language of the Constitutional Amendment is adapted to fit the current unConstitutional laws that allow private property to be taken from a private owner and given to another private owner for private development and it doesn’t stop the immoral use of “immediate possession”. The only difference is that once the title to your property is acquired (taken) by the government, the title can’t be transferred (given) to a private developer for 10 years. As for who actually holds the title to your private property from the time it is acquired by the government until the time it is handed over to the new private owner – I’m sure our legislators already have plans to fix this little issue.
Hopefully Mississippi’s legislators can muster the political courage (I doubt it) to add a simple alternative amendment to restrict the use of eminent domain to be used only for true “public use” (roads, bridges, utilities, government buildings, etc) rather than for the benefit of rich out-of-state private developers and for our elected official’s own political paybacks and ambitions.
But Is Initiative 31 Even Constitutional?
The bigger question though, is whether or not Initiative 31 is even Constitutional. I don’t necessarily have a problem with Farm Bureau, but I have to wonder if they’re either acting on behalf of the Barbour/Bryant administration or proposing a solution without considering or understanding the legality of it. (Surely FB has sought legal advice or talked with someone who would know that the initiative will likely be found unconstitutional.)
Initiative 31 will likely be challenged in court and it’ll likely be defeated since, according to Section 273(5)(a) of the Mississippi Constitution, an initiative by the people can not be used “for the proposal, modification or repeal of any portion of the MS Bill of Rights”, including the private property language in Section 17. Even tho the language in Initiative 31 doesn’t repeal and replace Section 17, it clearly modifies it and will surely be found unconstitutional.
For example (from a historical perspective), it would be unconstitutional (and immoral) to give blacks the right to vote in the Bill of Rights, then, 30 years later pass a ballot initiative to add to the end of the Constitution “Blacks can have the right to vote so long as they can recite the Preamble to the Constitution and guess within 10 beans how many beans are in a quart jar.”
Unlike people-driven initiatives, constitutional amendments proposed by the legislature can legally modify the MS Bill of Rights. But to do so would be political suicide under the Haley Barbour and the likely Phil Bryant administration after the 2011 election. So in the end, it looks like Initiative 31 is a cop-out for our legislators and the Republican leadership. It’s a continuance of the same scam to fool Mississippians.
How To Abolish Eminent Domain Abuse In Mississippi Immediately
Senate Rule Section 87
Every year a Constitutional Amendment originates in the House, passes the House almost unanimously and dies in the Senate Constitution Committee without a committee vote and without ever going to the full Senate. As mentioned above, the committee chairman that kills this bill every year is a Democrat, currently Bennie Turner, who is hand-picked by a Republican Lt Governor, currently Phil Bryant. Will our next Lt Governor (R-Tate Reeves or R-Billy Hewes) appoint the same, or a similar anti-property rights Senator to head this committee? Or will he choose someone who actually respects property rights?
Section 87 of the MS Senate rules (PDF) allow the Senate to pull any bill out of committee to be voted on the Senate floor without the Chairman’s consent simply by a majority of the Senators petitioning to do so:
87. No bill, resolution, concurrent resolution or measure having been referred to a committee shall be taken from such committee, or the committee be discharged from the consideration thereof, other than by a motion signed by a majority of all Senators elected; except that during the last six (6) days of a session, a majority of the Senators present and voting may call a bill, resolution or concurrent resolution from a committee by a signed motion.
Currently there are 27 Republicans and 25 Democrats in the Mississippi Senate. If Republicans or Democrats in the Mississippi Senate had any respect for the job we actually send them to Jackson to do (protect private property from theft, for example), and if they had any backbone at all – they could easily petition to pull this bill out of committee and put it to a full Senate vote. Let us see who all gets in the way of real eminent domain reform in favor of individuals. They could easily support the private property rights of us little folk in such a way that’s constitutional, but they don’t.
Article 7, Section 190 of the Mississippi Constitution
I believe the powers of eminent domain assumed by the state for economic development purposes are unConstitutional according to Article 7, Section 190.
Article 7: Corporations
SECTION 190: Eminent Domain; Police Powers
The exercise of the right of eminent domain shall never be abridged, or so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use; and the exercise of the police powers of the state shall never be abridged, or so construed as to permit corporations to conduct their business in such manner as to infringe upon the rights of individuals or general well-being of the state.
My understanding is that Article 7 Section 190 protects private individuals from the legislature concocting laws that would allow corporations to benefit from the state’s eminent domain powers. After all, if a corporation wants to expand their business into Mississippi then an agent of that corporation must contact the Mississippi Development Authority in order to benefit from the state’s eminent domain powers. Then, at the corporations directions the MDA will decide on the property to be seized, it’s owner evicted, the buildings bulldozed or repurposed, and the property given to the corporation so that it can conduct it’s business – all at the expense of the private individual. Although Mississippi law allows (even encourages) this underhanded tactic, the Mississippi Constitution reads as if it strictly forbids it since no right is greater than secure ownership of private property.
If this is actually the case (libertarians believe it is), then the eminent domain powers given to the state under the Mississippi Major Economic Impact Act are unconstitutional and ought to be abolished.
Compromises at the expense of individuals are a result of the 2 party system and a majority-take-all approach to governing people. It’s this system that grows government power and pits neighbor against neighbor over public policy. Freedom and liberty unites us and allows every person to live our lives as each of us sees fit without worrying that a majority vote will strip of us of our property or freedom. Only time will tell if Mississippians will remain so gullible each election cycle as to believe in Republican and Democrat words despite their own actions.
Also see Mississippi’s “F” on Eminent Domain Reform by the Castle Coalition.
Feel free to comment below if you agree, disagree, or have any ideas to share. We’re always open to hearing what you have to say.
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