COLUMN -- Put brakes on taking of private property

Wednesday, August 31, 2005


Drainage ditches are not the most appetizing of breakfast conversation topics, but attempting to digest the affects on Minnesota of the hard-to-swallow Supreme Court decision in Kelo v. City of New London, the fare fit the bill.

My breakfast companions were Lee McGrath and Nick Dranias, attorneys for the Institute for Justice Minnesota Chapter. The institute represented homeowners in the Kelo case in their fight against eminent domain and the transfer of their property to a private developer. In a controversial 5-4 decision and refusal to rehear the case, the Supreme Court bounced the issue of eminent domain for "redevelopment" back to state legislatures and state courts. Minnesota may see action on both fronts.

After Kelo, proposals were introduced in the special session to restrict government use of eminent domain in Minnesota. Sen. Michele Bachmann, R-Stillwater, and Rep. Ray Vandeveer, R-Forest Lake, are drafting a three-pronged approach that would prohibit the transfer of private property to another private party via eminent domain; prohibit the use of any state or local taxpayer dollars for economic development projects involving eminent domain; and require that profit from lands purchased by government for "economic development" be returned to the original seller.

"With this Supreme Court ruling, the ball is now in our court on this issue," Vandeveer said.

The ball's not only in our allegorical "court," but also in our state courts. In an article in the August issue of the Minnesota Bar Association's "Bench and Bar," Dranias writes that the history, language and structure of the Minnesota Constitution strictly limit the power of eminent domain to redistribute private property.

"The split decision in the Walser case (in which Richfield condemned private property and transferred it to Best Buy for its corporate headquarters) did not definitively resolve interpretation of eminent domain under the Minnesota Constitution," Dranias said. "It's time to address the unanswered questions."

Judicial uncertainty is more than an interesting legal debate. As McGrath points out, officials in New Brighton are "misusing eminent domain" to condemn a small business owner's land for high-end condos. In Champlin, an elderly couple who have lived there for 28 years face condemnation because their home is, in the mayor's words, on "prime real estate" for luxury condos, a restaurant and a marina.

Property owners adjacent to the Jefferson Smurfit property near Loeb Lake in St. Paul, whose family has held title to the land since 1905, are under threat of eminent domain as the city determines (noted in a neighborhood letter from council member Lee Helgen) "how to enhance the neighborhood." So the City Council can "assess redevelopment opportunities" presented by this private property, it passed an ordinance prohibiting homeowners on the land from making improvements to their properties.

Is this the historical concept of eminent domain in Minnesota? Not so, Dranias said. He makes his point by tracing the concept of eminent domain in Minnesota from clear limits set forth in the Northwest Ordinance of 1787 to the "flexible" definition of "public use" interpreted broadly as "public purpose" used to justify eminent domain abuse today — which brings us back to drainage ditches.

In 1915 Minnesota voters rejected a state constitutional amendment that would have permitted condemnation of private property to create private drainage ditches. By doing so, the people rejected the idea, as courts had a few years earlier, that private property could be taken simply because there was an indirect benefit to the public.

"People today have lost that sense of how fragile democracy is," Dranias noted. "In voting down the 1915 constitutional amendment, the people recognized the potential for eminent domain abuse. The authors of the Northwest Ordinance recognized the potential for abuse."

Dranias challenges judges and legislators alike to embrace the original meaning of "public use" and carefully scrutinize "public necessity."

"If this is done," Dranias said, "we can stem further eminent domain abuse in Minnesota."

Westover is an Afton writer who blogs at www.craigwestover.blogspot.com. E-mail him at westover4@yahoo.com. Westover's daughter was an intern at the Institute for Justice Minnesota Chapter this summer.

Category: Column,