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Court decision threatens private property in Louisiana

What mischief could the U.S. Supreme Court decision that declared a political subdivision could expropriate private property for any “public use” create in Louisiana? As it turns out, plenty.

There exist two kinds of expropriation in Louisiana, a “regular” process that first requires a court process to establish need, then value of the land to be expropriated, before action can take place, and an expedited process known as “quick take.” The latter allows work to begin as soon as need is established, while negotiations continue for the appropriate price to be paid.

Art. 1 Sec. 4 of the Louisiana Constitution outlines the general parameters for expropriation in its discussion of the right to property ownership by Louisiana citizens. Title 19 of the Louisiana Revised Statutes defines the process of regular expropriation. Governments are allowed to employ the regular means unless they are granted “quick take” ability in the statutes.

The general statute for quick take expropriation comes from RS 48:441 and subsequent sections. These refer to the state’s Department of Transportation and Development’s ability to expropriate for state purposes, but what generally happens through the statutes is when a local government wishes to have such powers, the statutes connect the specific subgovernment to this part of the statutes, noting any exceptions. For example, the specific statute pertaining to quick take expropriation for Shreveport and Bossier City starts at RS 19:121 and through subsequent sections.

The Supreme Court decision becomes problematic because Louisiana generally allows regular expropriation for any “property” and the Constitution states “Property shall not be taken or damaged by the state or its political subdivisions except for public purposes” (emphasis mine). In essence, the decision now makes anything a government wants a “public purpose.” (I’m not a lawyer much less one that specializes in this area; if anybody out there with expertise in the area would like to comment here, please do.)

The timing was nice for this since it happened right at the end of the legislative session. Absent a special session, the door remains wide open for Louisiana governments to abuse this power for another year. Even longer would take a constitutional amendment, a surer way of protecting the people’s rights than by statute.

Of course, this presumes that state lawmakers are of a mind to try to strengthen property rights as a result of this decision. That presumption may not be a winning bet. Bills expanding local quick take legislation, for example, have passed in each of the past three regular sessions, and many more were introduced. Many local lawmakers who have the attitude that government, instead of creating the conditions for economic development by the private sector, should actually drive economic development, will put pressure on legislators and the governor not to limit this newly and vastly expanded power.

Worst of all, the quick take legislation already on the books can allow considerable damage to occur in a year. Potentially, property rights could be run roughshod over in a widespread fashion very quickly with lasting damage. What if the city loses the lawsuit over strip clubs, bond money, and public parks? Will it decide to open a publicly-owned strip club wherever it pleases?

Not in Louisiana, you may say? For doubters that the strong pro-property feelings of Louisiana citizens may not get translated into policy, the following note I received in response to the Sep. 16, 2003 column I wrote for FAX-Net Update, in which I wrote state Sen. Max Malone, then running for reelection, rightly looked askance at some uses of quick take. The writer (son of a former mayor) then and now, today being sworn in again, sits on the Bossier City Council and refers to the city’s attempt to use quick take legislation to build a new overpass:

How is the denial of quick take "choosing the people's interest over the elite"? The people are concerned about traffic woes first and foremost and several greedy individuals are denying the "people" the infrastructure improvements that they badly need.

(He then goes on to level what he intended to be insults about me, classy, temperate guy that he is, but that’s potentially a subject for a future posting unrelated to this one’s topic.)

In other words, if people try to use the regular process to protect themselves from the unlimited, coercive power of government concerning their property, they are “greedy” in the mind of this lover of big government power. His attitude proves why we do need to worry about this decision.

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