Law of the Land

NPR’s Nina Totenberg interviews John Rapanos in front of the U.S. Supreme Court, while his attorney, Pacific Legal Foundation’s Reed Hopper (right), and the Mackinac Center’s Joseph G. Lehman, Russ Harding and Patrick J. Wright look on.

(The following article first appeared in the Winter/Spring 2006 edition of Impact.)

In a landslide vote on Dec. 13, the Michigan Legislature approved Senate Joint Resolution E, a landmark property rights ballot initiative. The resolution was informed by significant technical advice from Mackinac Center Senior Legal Analyst Patrick J. Wright. Michigan voters will now have the chance to amend the state constitution in November to prevent key types of eminent domain abuse by state and local governments.

The resolution was crafted in the wake of public outrage over last June’s U.S. Supreme Court decision in Kelo v. New London, which permitted a local government to seize people’s homes (with "just compensation") and redistribute the land to private developers in order to improve local tax revenues. The Michigan resolution was introduced to prevent such takings, as well as takings for so-called "economic development." But as Wright noted in his September testimony before a state House committee, existing statutes would readily permit government officials to effect similar takings by claiming to remedy "blight" (see Impact, Fall 2005). Following this testimony, state legislators frequently requested Wright’s technical expertise on the issue, and his views had real impact.

Stay Engaged

Receive our weekly emails!

As state Rep. Drolet, who spearheaded passage of SJR E in the state House, observed: "We all recognized that eminent domain was being abused under the guise of ‘economic development,’ but Patrick really foresaw that overbroad ‘blight’ takings would be misused too. His understanding of blight and the differences between state and federal takings law definitely helped us craft the resolution more effectively." State Sen. Tony Stamas, who sponsored the resolution, commented, "Patrick offered valuable input that helped us insure that Michigan’s citizens would be protected against takings abuse now and in the future."

Others involved in the bill felt similarly. Lee Schwartz, assistant vice president for policy and legislation for the Michigan Association of Home Builders, said: "The information from the Mackinac Center had a major impact on the shaping of this proposed constitutional amendment. They stood firmly in favor of the private property rights of Michigan’s citizens during the discussions. Their knowledge of constitutional law was invaluable." Scott Bullock, who was Susette Kelo’s attorney during the Supreme Court litigation and who flew to Michigan to consult and testify in support of SJR E, remarked: "At least the Supreme Court admitted in Kelo that states could pass laws against the use of eminent domain for so-called economic development. It’s been great to see so many states take up that challenge, and Michigan, with significant participation from the Mackinac Center, is in the vanguard with its 2006 ballot proposal. We were very pleased to work with the Center during the passage of this initiative through the Legislature."

If voters approve the ballot initiative in November, they will achieve a major constitutional victory for private property rights in Michigan — a victory forged in part by Wright’s expertise and hard work.

Constitutional Land Management

Of course, not every battle ends in a conventional victory. But it’s often worth putting up a tough fight on principle, as the Center did in January by opposing the state’s unconstitutional and preferential sale of a state property in Washtenaw County.

The sale was initiated in 2004 and garnered two bids — one for $25 million from DPG York LLC, a group of developers, and the other for $9 million from Toyota Technical Center USA, a firm courted by state officials. The land’s market value had been appraised at $11.9 million.

The state rejected both bids and the Legislature passed Public Act 326, which allowed sale of the land without competitive bidding, considerations of the property’s market value or meaningful legislative guidance for state executive agencies, which were empowered to determine "the best interests of the state" in selling the property. These and other provisions were openly intended to pave the way for selling the land to Toyota.

Economically, this was a deeply flawed approach that tells potential investors that high-profile competitors will receive preferential treatment in the conduct of state business in Michigan. And as Wright observed in the Center’s Jan. 13 news release, "The state Legislature’s broad, open-ended delegation of authority to (state executive agencies) to sell the property violated both the separation-of-powers and due-process clauses of the Michigan Constitution."

Wright’s comments came the day after he filed a "friend of the court" brief making this argument to the state Court of Appeals, which was hearing DPG York’s legal challenge to Public Act 326. Gov. Jennifer Granholm had raised the stakes the same day that Wright filed by requesting the state Supreme Court to wrest the case from the appeals court and decide it quickly. On Jan. 17, the stakes were raised even further when state Democratic Party Chair Mark Brewer called on the Center to withdraw its brief and criticized Republican gubernatorial candidate Dick DeVos for his past support of the Center.

The Center responded by announcing it stood by the brief. But on Jan. 24, the Michigan Supreme Court, which had initially overturned the appeals court’s dismissal of the lawsuit, suddenly ended the case without explanation by ruling against DPG York and prohibiting all further appeals.

The court’s order was a surprise and a disappointment, given the fundamental constitutional and economic issues involved. Nevertheless, as Wright observed afterward: "The Legislature in this case abdicated its constitutional responsibilities to executive agencies — something it does often. Changing this behavior will take time, but it’s a battle worth winning. It’s fundamental to representative government and to better public policy."

Supreme Court Levee

Indeed, land policy seems to attract roaming executive agencies that have slipped the leash. Thus did Wright and three of his Mackinac Center colleagues find themselves attending oral arguments at the U.S. Supreme Court on Feb. 21 in the consolidated wetlands cases Rapanos v. United States and Carabell v. United States Army Corps of Engineers. The legal disputes concern challenges by three Michigan families and their business associates to the federal government’s power to regulate wet areas on their properties under the rubric of protecting "wetlands" — challenges that the Center backed by filing a "friend of the court" brief with the Supreme Court on Dec. 2.

As Wright argued in the brief, federal agencies have overstepped their congressional grant of authority by regulating "wetlands" remote from the nation’s navigable waters. Moreover, as Wright noted, if the court were to conclude that federal agencies have not exceeded their legislative mandate, the court would then have to rule that Congress itself unconstitutionally exceeded its power to regulate interstate commerce.

The Center has followed the Rapanos case since early 2004, when Senior Environmental Policy Analyst Russ Harding’s questions about the dubious "wetlands" status of one of John Rapanos’ properties helped attract state and national media attention, including pieces in The Wall Street Journal and The Washington Times (see Impact, Fall 2004). Harding’s knowledge of wetlands regulatory procedures also provided Wright with a wealth of uniquely telling information that buttressed the brief’s discussion of the corrosive effect this federal overreach has had on the balance between state and federal power.

The Center’s wide-ranging perspectives on the cases produced numerous media citations in the weeks before the hearing (see Media Impact, Page 5). These citations were also spurred by a coordinated media outreach led by Mackinac Center Director of Communications Christopher F. Bachelder and enhanced by Communications Specialist Michael D. Jahr and Executive Vice President Joseph G. Lehman (both Jahr and Lehman, along with Harding and Wright, attended the Feb. 21 Supreme Court hearing). The Center knew that public education on these seminal cases was crucial to long-term shifts in public policy.

As Wright observes: "The Rapanos and Carabell cases are critical to reinvigorating constitutional limits on federal power. If Congress can regulate every drainage ditch, then Congress’ control of land use is virtually unlimited. The result would be a body blow to our federalist system of government, and it would leave average homeowners’ decisions at the mercy of distant and unresponsive federal bureaucracies."