The Eminent Domain Battle Heats Up in Missouri

In 2005 the US Supreme Court propelled the eminent domain debate to the fore when it ruled, 5 to 4, that the city of New London, CT, could take property from private citizens and give it to Pfizer Corporation. For those keeping score at home, the four dissenting justices were appointed by Republican presidents and, at the time, were considered the four most conservative members of the court. They were: O'Connor, Rehnquist, Scalia, and Thomas.

That case, Kelo v. City of New London, or just "Kelo," started an avalanche of legislation and ballot initiatives to reform eminent domain with the objective of curtailing crony capitalism. Several states have succeeded, but ballot measures in Missouri have been thwarted. The last attempt was stymied by court challenges over the ballot language. Those court challenges dragged on for thirteen months which left little time to actually gather signatures. Ron Calzone of Citizens for Property Rights led that fight and is leading the fight again this time.

Missouri's Secretary of State, Robin Carnahan, has jurisdiction for deciding the ballot language. That is the phrasing that will appear on the ballot and must be limited to a hundred words. If you haven't considered this before, please realize that the ballot language that you vote on is always a condensed summary of several pages of legalease. The role of the Secretary of State (SoS) in deciding the ballot language is to act as a third party to craft a neutral description of the initiative or amendment being voted on. The ballot language appears atop petition signature pages. Petition gatherers must collect a certain number of signatures in every Missouri county for the initiative or amendment to appear on the ballot. Once the SoS decides on ballot language, it is possible for that language to be challenged in court.

The problem is that if the language is challenged, then gathering petition signatures is ill advised. If signatures are gathered and the court decides to change the language, then those signatures are no longer valid. The Missouri constitution sets out a timeline for getting the ballot language, but it does not impose a time limit on legal proceedings. So, if you want to defeat a ballot measure, one strategy is to challenge the ballot language and do everything in your power to prolong the court battle.

That's what happened to Calzone and Citizens for Property Rights the first time. The ballot language provided by Secretary of State Robin Carnahan for the 2010 election cycle was:

Shall the Missouri Constitution be amended to restrict the use of eminent domain by:

* Allowing only government entities to use eminent domain;
* Prohibiting its use for private purposes, with certain exceptions for utilities
* Requiring that any taking of property be necessary for public use and that landowners receive just compensation;
* Requiring that the intended public use be declared at the time of the taking;
* Permitting the original owners to repurchase the property if it is not so used within five years or if the property is offered to a private entity within 20 years?

At the end of the 13 month court battle, on January 5th, 2010, the Missouri Court of Appeals Western District removed the language above that's been struck. I've embedded a copy of their decision below. The Appeals Court found [emphasis added]:

We agree with Plaintiffs and the circuit court, however, that the Missouri Constitution has historically and does currently require just compensation for takings. The fact that compensation may be required for public takings of necessity is not a result of a change in the compensation language but in the language of “necessity.” The process for determining just compensation may be affected, but not the establishment of such compensation.

In short, the reason for striking the "just compensation" clause was because the Missouri Constitution and statutes already make provision for "just compensation" and the proposed eminent domain amendment language did not change those "just compensation" provisions.

For the 2012 election cycle, Calzone submitted the same amendment and requested the same language that had been finalized by the Appeals Court. Yesterday, December 9th, 2010, Secretary of State Robin Carnahan supplied this ballot language:

Shall the Missouri Constitution be amended to restrict the use of eminent domain by:

• Allowing only government entities to use eminent domain;
• Prohibiting its use for private purposes, with certain exceptions for utilities;
• Requiring that any taking of property be necessary for a public use while continuing to provide just compensation;
• Requiring that the intended public use be declared at the time of the taking;
• Permitting the original owners to repurchase the property if it is not so used within five years or if the property is offered to a private entity within twenty years?

Calzone has responded by urging Show Me State residents to call Carnahan immediately and ask her to use the language the court ordered last January. If the language isn't changed by Monday, a court battle is likely.

I emailed Calzone earlier this evening with some questions. Here are those questions and his answers:

1) Basically, why is the "just compensation" language objectionable?
RC: The Summary Statement in the ballot title is supposed to only point out how the petition will change the law. Our amendment does not change the current just compensation language in the constitution, so the courts ruled against the inclusion once already. Putting it in again gives our opponents something to sue about - a valid claim that the courts have already said the just compensation language can't be in the Ballot Title.

2) What are the ramifications of waging the fight with the SoS's language?
RC: If we let her go unchallenged, she will continue to ride roughshod over us. If the language stays in, the court fight over the ballot title will take longer and there will be less time to collect signatures. In the 2010 cycle, there was too little time left to even try. In the 2008 cycle we collected 428,000 on our two petitions, but were a few thousand short in each.. One or two more days would have been enough to put us over the top.
3) What's the likelihood that the SoS will reverse by Monday?
RC: Not good.
4) What's the likelihood of a court battle if she doesn't?
RC: There will be one.

5) How long until a decision if there's a court battle?
RC: It's hard to say. That's just the point. The ballot title challenge will take months - from 3 to 13, perhaps.

Above I mentioned that one strategy for fighting a ballot initiative is to use the courts to delay a decision on the ballot language effectively running out the clock on signature gathering. The power of the Secretary of State is that she can craft the ballot title such that her allies can do exactly that.

This is why Robin Carnahan has such a high unfavorable rating.

This is why between 2008 and 2010 Robin Carnahan lost a million voters.

Robin Carnahan was one of the first Secretaries of State to win support from George Soros's Secretary of State Project.

Missouri Court of Appeals Opinion WD71224 WD71230