Proposal 4 Would Place “Reasonable and Significant Restrictions” on Michigan’s Use of Eminent Domain
Kelo-style takings for economic development would be explicitly prohibited; the proposal would also close a potential loophole involving “blight” takings
For Immediate Release
MIDLAND — Proposal 4 of 2006, a proposed state constitutional amendment that will appear on the Nov. 7 state ballot, would place "reasonable and significant restrictions on Michigan governments’ ability to use eminent domain to transfer property from one private owner to another," said Mackinac Center Senior Legal Analyst Patrick J. Wright today. Wright, author of a new Center study on Proposal 4, noted, "While the Michigan Supreme Court’s 2004 decision in Wayne County v. Hathcock created important barriers to takings like the one the U.S. Supreme Court allowed in the widely criticized Kelo v. New London ruling last year, Proposal 4 would strengthen Hathcock’s protections by placing them in the state constitution and extend those protections to additional instances Hathcock did not address."
According to Wright’s study, Proposal 4 would place prohibitions against takings for economic development and takings to increase government tax revenue directly in the Michigan Constitution, while shifting the burden of proof to the government to show by at least a preponderance of the evidence that a taking is for a genuinely public, not private, use. "Including such protections explicitly in the state constitution is significant," Wright observed. "This constitutional language would make it harder for future Michigan courts to misinterpret and weaken those protections in the way the U.S. Supreme Court undermined the federal Constitution’s Fifth Amendment in the Kelo ruling."
Wright argued, however, that perhaps the most significant feature of Proposal 4 is a provision involving takings to address "blight." "Blight has often been broadly and vaguely defined, and Michigan’s statute is no exception," Wright said. "Courts have allowed blight takings to include unblighted properties and even entire neighborhoods in order to provide developers with large areas on which to build. Unfortunately, such takings would allow state and local governments to pursue economic development aims simply by labeling these efforts ‘takings for blight.’ Proposal 4 would close this loophole by requiring the government to show through clear and convincing evidence that each property being taken was in fact blighted."
Wright’s study is available on the Web at www.mackinac.org/7964.