In December 2008 three petitions for ballot initiatives to amend constitution to restrict the use of eminent domain, barring takings for private ownership, we submitted to the Secretary of State. Pursuant to state law, the Secretary of State forwarded the petitions to the State Auditor for preparation of the fiscal note and fiscal note summary. The Auditor sent the petitions to various municipal governments for feedback as to fiscal impacts of the proposed changes. Most responded that there would be no fiscal impact, but five local governments indicated there would be significant impacts for them. The Auditor summarized the comments and submitted the information to the Attorney General’s Office for approval as to content and form. As approved, the ballot summaries were as follows:
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; and
- 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?
The approved article VI summary provided:
Shall the Missouri Constitution be amended to change the power of the General Assembly and constitutionally chartered cities or counties to:
* Prohibit the use of eminent domain to acquire and resell property found to be blighted, substandard or unsanitary for the purpose of clearance, redevelopment or rehabilitation; and
- Allow them to require owners of property found to be a public nuisance to abate or clean up the nuisance and, if the property owner fails to do so in a reasonable time, allow the local government to pay for the abatement and impose a lien to recover the cost?
The heart of one of the Plaintiffs’ claims is that the Auditor failed to independently “assess” the fiscal impact of the proposed measures, which, they contend, is mandated by law. The fiscal notes, they argue, contain only assumptions and no conclusions. The Auditor is specifically authorized to send inquiries to those state and local government entities having knowledge pertinent to the proposed legislation. The Court noted that “The Auditor’s Chief of Staff testified it was their practice to evaluate the responses and to obtain clarification from the entity if the information was unclear. If they found a response to be unreasonable, that affected how much weight was given to the statement in preparing the summary. The plain language of the statute does not mandate that the Auditor adopt another method of independently assessing the costs or saving of the proposal.” Therefore, the Court concluded that the Auditor’s current process is adequate to satisfy the statutory requirement.
However, with respect to their second claim, the Court agrees with the Plaintiffs and the circuit court that the Missouri Constitution has historically and does currently require just compensation for takings, and 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. Therefore, the Court reversed the circuit court’s revision and modified the summary statement as follows:
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;
• 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?
Missouri Municipal League v. Carnahan 2010 WL 9929 (MO. App. W.D. 2/2/2010)
The opinion can be accessed at: http://www.courts.mo.gov/file.jsp?id=36393
This is a great analysis, Patricia. At the heart, you get to the procedural due process issues. Will a decision be made by establishing facts in a transparent manner consistent with the Administrative Procedure Act? Will the open records act apply to the analysis and submissions and will the open meetings act apply to their oral discussions?
“The Auditor’s Chief of Staff testified it was their practice to evaluate the responses and to obtain clarification from the entity if the information was unclear. If they found a response to be unreasonable, that affected how much weight was given to the statement in preparing the summary. The plain language of the statute does not mandate that the Auditor adopt another method of independently assessing the costs or saving of the proposal.”
In 1991, pre Internet, there was a great novel called The Truth Machine by James Halperin. I really liked it. Now the Internet could transform the world by becoming an actual truth machine. All of the analysis of these various applications and procedures could be on-line.
I saw an application once where it was claimed that property was blighted by trees, so obviously blight and beauty depends on the beholder. (Of course there is a real expensive problem with top heavy or rotten trees)
By: kaysieverding on February 28, 2010
at 11:59 am