Commentary: Legislation Needed to Protect Private Property Rights
Pitts, William O., THE JOURNAL RECORD
Private property rights under the Fifth Amendment of the U.S. Constitution, long a sacrosanct principle, have come under judicial attack.
An effort to protect these rights likely will be one of the early priorities of the 2006 Oklahoma legislative session, which begins today.
Triggered by a decision in the U.S. Supreme Court case of Kelo vs. New London, Conn., at least two pieces of legislation have been introduced. One, Senate Bill 1852, is by state Sen. Clark Jolley, R- Edmond, and the other, House Joint Resolution 1057, is by state Rep. Mark Liotta, R-Tulsa.
The high court's decision left the taking of private property by a government entity virtually unfettered.
In Kelo, private property was taken from one person through the power of eminent domain by the City of New London on behalf of another private individual, essentially justified by the fact it would enhance the town's tax base.
Jolley and Liotta are co-chairs of an ad hoc task force formed to address the problem. Composed of seven other lawmakers and three citizen members, it met several times early last fall.
Prior to the Kelo decision, the fundamental premise of eminent domain was that private property can only be taken by government for public use and good. The Supreme Court in essence said courts can define public use and good.
In Oklahoma, the power of eminent domain is outlined in Article II sections 23-24 of the Constitution.
Section 23 explicitly states no private property shall be taken or damaged for private use with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining or sanitary purposes.
This is straight-forward language.
Section 24 provides for the taking of private property for public use, but also In all cases of condemnation ... for public or private use, the determination of the character of the use shall be a judicial question.
In either case, public use is not defined.
Liotta's resolution amends Section 24, limiting what the courts can determine as public use. Excluded are the public benefits of private development, including but not limited to an increase in tax base, tax revenues, employment or general economic health. …