David N. Bass, September 12, 2011
RALEIGH — Although it was No. 9 on their 100-day legislative agenda, Republicans in the North Carolina General Assembly are not expected to take up a constitutional amendment this week that would curb state government’s eminent domain powers.
Instead, indications are that legislators will address the issue when they reconvene for their “short session” in May next year. If they approve the amendment at that time, the issue could still appear on the General Election ballot in November for final approval by voters.
The delay could be a favorable development as it will give lawmakers more time to work out kinks in the language, say private-property rights advocates. The existing version of House Bill 8 says that private property “shall not be taken by eminent domain except for a public use.”
Problems with that wording have cropped up because the amendment doesn’t define “public use.” The U.S. Supreme Court and various lower courts have interpreted public use broadly, said Daren Bakst, director of legal and regulatory studies for the John Locke Foundation (publisher of Carolina Journal).
“A constitutional amendment should be specific and should protect against end runs a government can use to take property for economic development,” Bakst said. “I appreciate what the House is trying to do, but I have serious doubts that it will work. Too much is being left up to courts to interpret. Given precedents, the courts won’t interpret ‘public use’ the way the House envisions it.”
Kelli Kukura, director of government affairs for the N.C. League of Municipalities, said that her organization has worked with bill sponsors to make the language more favorable to local governments.
“We were concerned it would cause confusion in the courts and would harm economic development in cities and towns,” she said. While the league isn’t supporting the current amendment, members aren’t working against it, either, she added.
The state House passed the bill 91-18 in April; it’s sat in a Senate Judiciary Committee since then.
The amendment cropped up after the U.S. Supreme Court ruled in 2005 that local governments could take property through eminent domain for economic development purposes — such as to get more tax revenue. The case was Kelo v. City of New London.
Support for the amendment has been bipartisan in North Carolina, with a few exceptions. One of those is House Minority Leader Joe Hackney, D-Orange, who said in April that the amendment should be converted to a statute. He also expressed concerns about the amendment’s implications for the future.
“What the amendment fundamentally does is take a settled area of the law, which is good for everybody, and makes it unsettled, which is not good,” Hackney said.
Bakst said that property-rights protections are worth putting in the state constitution, as long as they’re done right.
“If the Supreme Court gutted our First Amendment rights, would we think it’d be appropriate to rely on state statutes to protect our free-speech rights? No. We’d want a state amendment. There is no difference here,” he said.
Secondary amendments
Republicans have introduced several other amendments on fiscal policy that never got traction during the session — nor are there plans to consider them this week. Among them:
• House Bill 913, Amend Constitution/State Savings Fund: Would require the General Assembly to lay aside a percentage of revenue growth in a savings account, to be used for specific expenditures only. Assigned to the House Judiciary Committee in May.
• House Bill 784, Three-Fifths Vote to Levy Taxes: Would bar lawmakers from raising taxes without a supermajority vote in both chambers of the legislature. Right now, a simple majority is needed. The amendment would not apply to a law authorizing local taxing units — such as counties and municipalities — to levy a tax. Assigned to the House Judiciary Committee in April.
• House Bill 188, Taxpayer Bill of Rights: Would require new General Fund expenditures to correlate with population plus inflation. A two-thirds majority vote of the General Assembly would be needed to exceed the expenditure limit. Assigned to the House Judiciary Committee in February.
Amendments also have been filed addressing election law:
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