Eminent Domain Amendment DOA as Session Resumes--GOP expected to put off property rights issue until 2012

Carolina Journal

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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NC Special session agenda dwindles

House Speaker Thom Tillis has said next week's special session will probably be only three days long. At this rate, state lawmakers may have to stretch to get three days out of it.


According to the resolution authorizing the special session, legislators can only take up certain kinds of matters next week. The main focus of the session is supposed to be constitutional amendments, but veto overrides and redistricting bills can also be considered.

The three constitutional amendments considered most likely to come up next week are a proposal to ban same-sex marriage and civil unions, a proposal to limit the number of years a member can serve as House or Senate leader, and a proposal to limit government's power to take private property for public use, known as Eminent Domain.

Under state law, local governments can take private property for public use or public benefit. That ensures government's ability to build roads, schools, water infrastructure and other facilities needed by the public.

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http://www.wral.com/news/state/nccapitol/blogpost/10095082/

Eminent domain amendment should provide real protection

JLF expert offers model language to help protect fundamental rights


Legislators should provide real property-rights protections as they pursue a constitutional amendment targeting eminent domain abuse. The John Locke Foundation's top legal expert offers that advice in a new Spotlight report..........
 
An amendment is critically important, Bakst said. "North Carolina has the weakest property rights protection in the country," he said. "This is the only state that does not expressly address eminent domain in its constitution. There is absolutely no state constitutional protection from eminent domain abuse, such as the government seizing private property for economic development."


http://johnlocke.org/press_releases/show/591

NC Session Offers Disappointment, Not Much Surprise

John Hood's Daily Journal: Session Offers Disappointment, Not Much Surprise


By Becki Gray, July 23, 2010
 
This week’s “Daily Journal” guest columnist is Becki Gray, Vice President for Outreach at the John Locke Foundation.


RALEIGH — During the recent legislative session, I relied heavily, as you have, on Carolina Journal, The Locker Room, and JLF policy reports and briefings to understand the debate and decisions made by North Carolina’s 50 senators and 120 House members.

In addition, in my role as the Locke legislative liaison, I spent most of my time since May 12 at the General Assembly, walking the 206,000 square feet of the Jones Street complex, monitoring meetings of the 67 legislative committees, talking with lawmakers and many of the 500 legislative staffers, and attending session on the 35 days they met (at a cost to the taxpayer of $62,500 per day, or $2,187,500 for the short session), along with 734 registered lobbyists and 93 government agency liaisons. Since the principal clerks dropped hankies and adjourned sine die at 5:30 a.m. Saturday, July 11, I’ve had time to reflect on the 2010 short session, the 876 bills considered, and the 127 new laws passed.

And here’s what I think…
I think government is too big.

In the last 15 years, North Carolina’s budget has more than doubled while population has grown only 28 percent. There are more than 661,000 current and retired state employees, all eligible for state-sponsored health insurance and pensions, both grossly underfunded. Instead of shoring up the plans, legislators added 863 new government jobs this year. Medicaid is the fastest-growing segment of state government and now consumes 16 percent of the budget. Almost 20 percent of North Carolinians are eligible to receive Medicaid. Estimates show government agencies will seek next year at least $3 billion more than the state has available from recurring taxes and fees. When government becomes bigger than the sources that pay for it, the whole system becomes unsustainable.

I think government costs too much.

This year’s final budget topped out at $20.6 billion. General Fund spending increased by $200 million when you count the $1.6 billion in federal stimulus money. (Why wouldn’t you count it?) Instead of lowering the corporate tax rate for all businesses, legislators authorized more than $350 million in new corporate welfare for targeted businesses, including a $1 million tax break for big name movie stars. There are $1.45 billion in new fees and taxes this year. Our state debt is more than $6 billion, over a third of it non-voter-approved, and service on that debt now eats up 4.25 percent of the state budget.

I think government should mind its own business.

In the ultimate nanny-state legislation, the honorables decided kids are too fat. Thus government should regulate the amount of juice kids in day care should be served and whether it should be in a cup or a bottle. The honorables wanted to outlaw 2 percent milk for children over 2 years old, as well as chocolate milk and sodas. A watered-down version of these ideas passed. Now they are guidelines, rather than mandates. But the point was made — government knows better than parents what kids should eat.

They banned the use of plastic bags in all stores in several coastal counties. They tried to outlaw country stores from making and selling peanut butter and banana sandwiches and pimento cheese sandwiches. They continued to cap the number of charter schools at 100, limiting education choices for students and their families. In spite of concerns over privacy issues, arrests for most felonies will warrant DNA collection.

Only after a very loud public outcry was a plan to use taxpayer money to fund more political campaigns for Council of State and municipal offices rejected. A two-year fight continued to wrestle a federal license for hydroelectric plants away from the company that built and owns them. Cities still have the ability to annex property owners against their will, and efforts to protect property owners constitutionally from government land grabs through eminent domain were dropped.

I think government is not being entirely honest.

Aside from the budget, ethics reform was the must-do issue of the short session. Lawmakers argued long into the final hours to pass a bill that claims to clean up bad behavior. It turns out that the final bill regulates lobbyists, contributors, and other elected officials; makes public records more accessible; and offers little additional oversight of lawmakers themselves. Efforts to expand the cooling-off period longer than six months for lawmakers who want to become lobbyists were unsuccessful, and a key provision to eliminate pay for play was dropped at the last minute.

They claimed to help small businesses while maintaining a high marginal income tax rate that affects most businesses, along with a high corporate tax rate. They offered minimal tax breaks that may sound good, but affect few businesses and actually help even fewer.

They preached open meetings, transparency, and fairness while backroom deals continued. Lengthy, complicated bills were changed with little notice and even less time to review. A budget technical corrections bill that did much more than make technical corrections was introduced in the final hours of the session with virtually no time for review. New provisions that were not included in either version of the House or Senate budgets showed up in the final budget conference report — a clear violation of legislative rules. Most bills considered were sponsored by the majority party, and most of the minority party’s bills were never heard.

Legislators loved gambling when the lottery passed in 2005 (with the tiebreaking vote cast by then Lt Gov. Bev Perdue), but they hate it now that video poker and sweepstakes have proliferated. Despite claims of the potential of 10,000 lost jobs and a $576 million revenue loss, video sweepstakes were banned. Thirty-one legislators who voted no for privately operated gambling voted yes for state-run gambling in 2005. They promised lottery proceeds would never supplant existing education spending and then passed a budget that uses lottery money to fund teacher salaries.

I think government is headed in the wrong direction.

Next year the $1.3 billion state tax increase sunsets, and the $1.6 billion federal stimulus money runs out, creating a $3 billion shortfall. The state treasurer has advised that the debt limit has been reached and that pension contributions will require $1.2 billion next year. The reserve accounts have all been drained. Lawmakers took more than $30 million out to balance this year’s budget with plans to take $152 million more if Congress doesn’t come up with FMAP money. North Carolina’s economic recovery is expected to be slow. The years of spend-and-tax ratcheting, dependence on one-time revenue to fill recurring obligations, and offering short-term solutions for long-term problems finally have caught up with us.

I think we need to change the way we look at government.

The years of excessive spending, government growth, infringement on rights, nanny-state regulation, and hollow claims of responsible governing continued during the short session and have left us with an unsustainable system. North Carolina’s tax system, which was established in the 1930s, needs to be updated. It should be fair, revenue-neutral, rooted in a respect for liberty, and dedicated to freedom of choice. Government has a role, and it’s defined in the Constitution. Growth in government should be tied to population growth. People should be given ample freedoms to make choices without government interference, and they should be held accountable for those choices, as should elected officials.

The 2010 short session was a disappointment, but not a surprise.

I think we can do better.

©2010 John Locke Foundation, 200 West Morgan St., Raleigh, NC 27601, Voice: (919) 828-3876


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