Unload the gun

Many of you will remember that on July 23, 2005, we received a chilling wake-up call from the United States Supreme Court in its decision on Kelo v. London (Connecticut) as to the vulnerability of our private property rights to unwarranted government seizure. To be sure, The Fifth Amendment to the United States Constitution grants governments the right to take private property with just compensation in furtherance of the public good. Prior to Kelo, most people wrongfully concluded that a government's access to this power would be limited to those very isolated circumstances when a private citizen stood in the way of an overwhelmingly compelling requirement to improve public infrastructure—highway, school, public building, etc. And even then, we wrongfully assumed it would only be exercised after exhausting all other reasonable alternatives to meet the public need in another way. The Kelo decision was different, and expanded beyond our wildest fears the ability of a government to stomp unimpeded on our private property rights. In it, the court granted to a city government the right to use eminent domain as a means to further the economic interests of a developer on the thin basis that the area would benefit economically from the developer's private project. This approach rivals the money changers in the temple for being an alarming notion. We should not let it stand unencumbered by common sense and respect for an individual's right to control the destiny of his or her private property.

This case has great significance to all of us in Flathead and Swan valleys. First, the unprecedented growth we are experiencing renders it only a matter of time before the potential of a similar judicial disaster could loom over us. Second, this is no idle threat as Article II, Section 29 of Montana's constitution establishes our government's right to exercise eminent domain over owners of private property. Further, Title 70, Chapter 30 of Montana Code Annotated defines the circumstances that eminent domain can be used to further public interest. Unfortunately, the code is not clear as written as to whether or not "public use/interest" could be morphed into the notion that a government entity could condemn an individual's private property as a means to foster economic development. We must close this potential loophole just as other states, such as Alabama, and more recently, South Dakota, have done. Our Legislature must act in the 2007 session to revise our code to unequivocally remove the profit motive as a basis for defining the public good. If the family farm is to be a "box store" or resort complex, let it be because the original owners willingly marketed their property as opposed to having it expropriated with minimal compensation by the government for use by an entrepreneur or profit seeking company.

Fortunately, I have seen no evidence here that any county/local government would consider such a course of action. Nonetheless, to leave this power unchecked is like playing with a loaded gun. The gun must be unloaded by our next Legislature by amending current statute to more narrowly constrain the power of eminent domain.

Don Loranger is a resident of Bigfork and Republican candidate for SD 5.