Thursday, December 29, 2005

Judges Define Public Use in Colorado

The most commonly known fact about the Kelo opinion is that it holds eminent domain may be used to acquire private property for public purposes like economic development, even if the title to property is being transferred, with just compensation, from one private individual to a different private individual. Not so well known is that the opinion also states although such uses are appropriate, state constitutions and local legislatures are the ultimate authority when it comes to defining what constitutes a public use. Since the New London Development Corporation was given the power to exercise eminent domain by the legislative, which was not in conflict with any other state law or the state constitution, the project was given the Supreme Court’s stamp of approval. The Court applied a test to define public use that holds what the legislative says is a public use is a pubic use.

I started to investigate what Colorado law had to say about the matter and discovered that the issue is addressed in Article II, Section 15 of the Colorado constitution:

. . . whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.

In Colorado the task of defining public use is deferred to the judicial branch. This may pose a problem. Let’s say my property gets taken by government for a public use I think is better defined as a private use. What happens? We go to court and let a judge decide who’s correct. Let’s say the judge sides with me and the government appeals and wins. This goes on until we make our way to the Colorado Supreme Court. This is where the problem comes in. The Supreme Court says it’s not the place of the judicial to decide what constitutes a pubic use, but the Colorado constitution explicitly assigns this role to the judiciary. This means that when the Colorado Supreme Court rules in favor of me, the property owner, I better hope the Supreme Court doesn’t take the case on appeal since it will defer the matter to the legislature. And if the Colorado Supreme Court rules against me, that’s the end of the line for me and I better start packing my bags.

It seems to me the test the Supreme Court uses to determine the definition of public use fails to be meaningful for the citizens of Colorado who may be experiencing eminent domain abuse as they have no alternative to State Court. Perhaps this is one of many reasons an Amendment to the federal Constitution defining public use is needed.

1 comment:

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