Patrick McSweeney


 

Standing up for Property Rights   

The House of Delegates has passed legislation that will protect property owners from unjust takings. Unfortunately, the Senate's version of the bill could do more harm than good.


 

I find it hard to imagine that Del. Terrie Suit, R-Va. Beach, ever read the decision of the U.S. Supreme Court in Kelo v. City of New London, which caused such an uproar when it was published last year. Had she done so, she certainly would not have allowed legislation she introduced at this session of the General Assembly to be portrayed as a measure designed to counter that decision.

 

In Kelo, the Supreme Court ruled that a city could take private homes that were not in a blighted area and turn the property over to a private company for the purpose of economic development. This offended the principle announced by Justice Samuel Chase in a 1798 Supreme Court case that “a law that takes property from A and gives it to B . . . is against all reason and justice.”

 

Justice John Paul Stevens, who wrote the majority opinion in Kelo, later said he regretted the decision, but pointed to language in his opinion that the states can place further restrictions on the exercise of the takings power to prevent the Kelo outcome. Congress also is considering legislation to restrict the Kelo decision. The three Republicans running for statewide office in Virginia last year issued a joint statement declaring their support for legislation to prohibit the taking of private property for the purpose of tax revenue enhancement or economic development. House Speaker William J. Howell, R-Stafford, followed with a statement of his own pledging to introduce and pass legislation to restrict the exercise of eminent domain power to prevent the Kelo outcome in Virginia.

 

What Howell had to say last year is worth noting:  “Citizens need to know that the majority they’ve elected to lead the House of Delegates not only shares their concerns and opposes the Court’s 5 to 4 ruling, but that we will do what is necessary to ensure that property rights in Virginia are protected from the effects of this misguided change in public policy.”

 

The legislation introduced by Suit did not meet that objective. Nor did the amendments to Suit’s bill that were approved by the GOP-dominated Committee on Courts of Justice. As the legislation reached the House floor, it explicitly allowed private property to be taken and then transferred to other private persons so long as the initial take was not primarily intended to enhance tax revenues. The bill did nothing to prohibit the transfer of private property from one owner to another in non-blighted areas for economic development, job enhancement or any other nominally public purpose.

 

It took a Democrat, Del. Johnny Joannou, D-Portsmouth, to expose this defect in Suit’s bill. Suit vigorously opposed Joannou’s floor amendment, which contained the strictly limited definition that Republican leaders said they supported last year. But a majority of delegates, including most Republicans, voted to adopt Joannou’s amendment to Suit’s bill.

 

The Senate, meanwhile, has passed legislation much like the Suit bill as reported by the House Courts of Justice Committee. Undoubtedly, there will be another fight over eminent domain at this legislative session.

 

The Senate-passed bill would not prevent many of the abuses identified by the dissenting justices in the Kelo case. If the Senate-passed bill is enacted, government would arguably have legislative approval to transfer property from one private owner to another so long as it was taken for any reason other than to enhance the tax base or to create employment opportunities.

 

Those who understand the importance of private property in preserving liberty should be very vigilant until this session adjourns.  

 

-- February 27, 2006

 

 

 
 

 

 

 

 

 

 

Contact Information

 

McSweeney & Crump

11 South Twelfth Street
Richmond, VA 23219
(804) 783-6802

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