Missouri groups challenge initiatives to restrict eminent domain

Thursday, May 28, 2009 | 12:01 a.m. CDT

JEFFFERSON CITY — Missouri courts are again involved in a battle over potential ballot measures restricting the use of eminent domain to take private property for redevelopment.

After failing to survive court fights in 2006 and 2008, people seeking greater limits on the condemnation of private property got an early start to get their latest initiatives on the November 2010 ballot. And they again have run into a legal challenge.

Cole County Circuit Judge Richard Callahan heard arguments Wednesday in a lawsuit by the Missouri Municipal League claiming the state ballot summaries and financial estimates prepared for the eminent domain initiatives are unfair and insufficient.

Callahan issued no immediate decision, instead giving attorneys until June 9 to submit proposed rulings.

At issue are initiatives sponsored by Missouri Citizens for Property Rights that would amend two sections of the Missouri Constitution relating to eminent domain. The combined intent is to prohibit a home, business or other private property from being condemned for another private development, such as a shopping center.

Among other things, the proposals would let people buy back their property if the public entity that condemned it does not use it for its stated purpose within five years, or if the public entity attempts to sell, lease or transfer the property to a private entity within 20 years.

Robert Hess, a Municipal League attorney, argued that one of the ballot summaries prepared by Secretary of State Robin Carnahan's office should be struck down because it implies the measure would enact certain private property protections that already are in place.

Carnahan's summary appears both on the petitions that people sign to get initiatives on the ballot and, if enough signatures are gathered, on the ballot itself.

Callahan attempted to focus the attorneys' arguments on a particular phrase in one of the summaries stating that eminent domain would be restricted by "requiring that any taking of property be necessary for a public use and that landowners receive just compensation."

Hess argued that landowners already must receive "just compensation" when their property is taken and that the measure merely is changing the definition of what qualifies as a "public use" by barring some currently accepted uses for condemned property. Consequently, he said, the summary would mislead voters about the effect of the initiative.

The ballot summaries were defended both by the attorney general's office and by Ron Calzone, who is not an attorney but is the sponsor of the initiatives for Missouri Citizens for Property Rights.

Calzone said the requirement that eminent domain "be necessary for a public use" is intended to emphasize that it's a last resort after negotiations to buy that property or other adjacent properties have failed.

But even if the summary restates some protections already in existence, that does not mean it's legally insufficient or unfair, said Jeremiah Morgan, deputy solicitor general of the attorney general's office.

The Municipal League challenged the group's other proposed constitutional amendment by claiming the summary was not expansive enough in describing the extent of the local governmental entities that would be affected.

It also challenged the financial summaries prepared by state Auditor Susan Montee's office, particularly the phrase stating "the total cost or savings to state or local governmental entities is unknown."

Hess argued that the language implies there could be savings. But he said the financial estimates provided to Montee's staff by state agencies and local governments provide no basis to assume there could be savings.

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