Del. Sal Iaquinto: Eminent Domain so easy a child could understand
By Brian Kirwin | Monday, January 9th, 2012 | PolicyDel. Sal Iaquinto (R-84) penned this editorial that appeared in Sunday’s Virginian-Pilot. Never thought anyone would work video games into the property rights issue, but darn it if Sal didn’t succeed.
As a member of the House of Delegates, I often discuss legislation around my kids. While they generally don’t pay attention, occasionally they ask me to explain matters in terms they can understand.
Take the proposed constitutional amendment on property rights, which is coming up for its final vote in this legislative session. When my oldest asked me to clarify, I offered the following analogy.
“Suppose I take your game system away because I don’t like the types of games you play, and give it to your brother because he’ll use it to play interactive sports games. Just think: Not only will he get fit, but he’ll inspire all of us to get fit! Don’t worry, I’ll come up with a fair price for the system — if you disagree, just show me why I’m wrong. Oh, and, by the way, don’t expect me to pay you for the controllers or the games, you’ll just have to swallow that loss.
“Now, son,” I continued, “if the father in this scenario were the government, and you were a property owner, what would be right?
(A) The government should be able do what it proposed, as it might benefit everyone?
Or (B) The government should limit itself, being careful to not take property willy-nilly.
If you answered (A), then you subscribe to the same reasoning as did the liberal U.S. Supreme Court majority in 2005’s Kelo case, which held that localities could take private land from one owner, hand it over to another, and that this could meet the “public use” rule for eminent domain even though the property wouldn’t be used by the public. Even a child understands the unfairness in this proposition.
If you said (B), then you’re like many local public officials throughout the commonwealth who, very reasonably it may seem, don’t necessarily agree with taking property from one private owner just to hand it to another. They believe that government should restrain itself, take property only for legitimate public use, and keep costs down in the process. They’ll offer fair market value, which is presumed to be correct, but property owners may certainly dispute it. At their own cost, of course.
But if you said, whoa, wait a minute! Where is option (C)? Neither (A) nor (B) is acceptable; in fact, the entire analogy is false. Because government is no parent, property rights shouldn’t be subject to the whims of elected officials. The government’s condemnation power stems entirely from, and is limited by, the people. If that’s your response, you understand, as I do, that the current debate represents competing beliefs about the relationship between citizens and the government they created, and that only a constitutional amendment goes far enough to protect a right that is neither granted by government nor should be easily infringed by it.
Let me explain why the proposed amendment is so important.
It would elevate existing law to the state constitution. Following the Kelo decision, horrified state legislators around the nation passed laws consistent with a more restrictive view of condemnation powers. Virginia was no exception, passing an anti-Kelo statute in 2007. This legislation was necessary, but without constitutional protection, that law is subject to reversal with the election of a new legislative majority or new administration.
It would shift the burden of proof from the citizen to the government. This may sound like a minor matter, but it’s immensely important. Now, courts hearing condemnation cases must presume by law that the government’s facts are correct and that the land being taken is for a legitimate public use. If the property owner cannot provide an effective defense, which usually means hiring an attorney, the government automatically wins. This is fundamentally wrong. Citizens are the source of government power and should retain that advantage in court.
It would allow courts to consider lost profits and lost access to property as compensable damages. Opponents would have you believe that the amendment would require cities to pay businesses every time they were hampered by activities like parades and street cleanings. That’s a misleading argument that ignores the language of the amendment and the way our justice system works. We already trust judges and juries to decide reasonable compensation on all sorts of matters, but we also require the damaged parties to offer evidence of these damages — the amendment does nothing different.
Although my son doesn’t fully understand the proper relationship between citizens and their government, we adults do. It’s up to us to leave for our children an inheritance — not just of property, but more importantly, the rights that secure property ownership.
You have an important role in protecting these rights. First, ask your representatives to support the amendment. Then, after it passes, vote to ratify it in the fall.
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About the author
The right wants to jeer him. The left wants to censor him. Moderates usually want both. Brian Kirwin is a political consultant and public relations strategist in Virginia Beach with a lightning-rod flair. Brian also serves on the VB Arts & Humanities Commission and frequently appears on Hampton Roads theatrical stages, if only to prove that all actors aren’t liberals. Kirwin’s columns stir up debate and hit the political scene with no punches pulled.
Comments
7 Responses to "Del. Sal Iaquinto: Eminent Domain so easy a child could understand"
If you answered (D), this is a solution in search of a problem designed to gin up those marginally saner than the black helicopter crowd, you would be correct.
Thanks to Delegate Iaquinto for writing his article. I agree; property rights must be protected. Frankly, Virginia statutes are well crafted, our courts have an excellent process for adjudication if required, so a constitutional amendment is simply unnecessary.
In this case, the proposed amendment will do real harm. It removes current definitions of public use and facilities that are accepted legal principles relied upon for decades by both the private and public sectors, it fails to define new terms in the proposed amendment, it creates new definitions creating much greater cost, and it may prevent the use of eminent domain for such crucial state priorities as U.S. 460, U.S. 58, and the Coalfields Expressway project, among others.
In summary, this amendment is not an improvement, it creates serious costs and potential problems, it could prevent many of the Governor’s transportation initiatives, and frankly, it is simply not necessary as existing statute is working just fine in Virginia.
If Delegate Iaquinto’s argument is the best the pro-amendment crowd can come up with then when I get the chance, I am going to vote against it.
The video game example of why it needs to be enacted is sorely lacking. Surely those supporting it can come up with a better example then that to support it or my vote goes against it.
Urban renewal is a good thing. One person who unreasonably continues to insist they would rather live in squalor and blight should not be allowed to prevent it.
We should carefully guard against a tyrannical government that might abuse the power of Eminent Domain to enrich a few at the expense of the individual. However, I would not be in favor of anything that might have kept Dwight Eisenhower’s interstate system from being constructed or which thwart urban renewal.
While government tyranny is a valid concern we should guard against, we should not resort to cutting the arms and legs off those elected and still expect them to be capable of governing. If those elected have no powers to govern, why did we even bother holding an election in the first place?
LittleDavid, Delegate Iaquinto’s view is simply that property rights should be sanctified; that is, if property is needed for a public use, but can’t be obtained by negotiation, it should not be condemned.
When we asked him about the Rolls Royce deal, that is, the company needed an interchange so land was obtained to meet that need, he said he would not support that, fully acknowledging that the public interest was served by the location of that plant in Virginia.
At least he is honest. Our problem is that there are legitimate public and economic benefits that accrue to our Commonwealth from the provision of public infrastructure and that ability should not be constrained by the constitution.
If that happens, corporations and businesses will simply go elsewhere if Virginia can’t meet their requirements.
Years ago whenever I had a question about real estate law, I would always ask Doug Swift up in Winchester. At the time he was one of the best in the state. Extremely good at divorse law too.
I wonder who is considered to be the best lawyer in real estate in Virginia now??
And what does numero uno has to say about all of this ???
Mike Barrett,
I think I understand your reasoning and I do not believe I support it in it’s entirety. Should every individual citizen’s rights be invaded just so that somebody else might make a buck off it?
I guess I still support your position, I just do not support your justification for it.
Clearly, if an individual’s land is needed for a public improvment like a road, public utilities, bridges and/or tunnels, that property owner is entitled to fair and equitable compensation. That is exactly what is provided in the constitution today. Kelo does not apply in Virginia. So this proposed amendment is simply not needed, and were it to pass, would be more expensive, more unclear, and could severely curtail public projects like U.S. 460 which has a clear nexus to port and economic development.
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