Oklahoma Supreme Court Shoots Down Initiative, but They Are to be Forgiven

by James S. Burling

On Tuesday, last week, the Okahoma Supreme Court here struck down Initiative 382 which would have put severe limits on eminent domain abuse.  The Court found that the initiative violated the single subject rule. Nobody is crying too hard, however, because in Board of Commissioners v. Lowery the same Court in May had excised eminent domain abuse from the state constitution.  Several passages from Lowery are worth reciting:

we conclude provide private property protection to Oklahoma citizens beyond that which is afforded them by the Fifth Amendment to the U.S. Constitution. In other words, we determine that our state constitutional eminent domain provisions place more stringent limitation on governmental eminent domain power than the limitations imposed by the Fifth Amendment of the U.S. Constitution. [FN19] We join other jurisdictions including Arizona, Arkansas, Florida, Illinois, South Carolina, Michigan, and Maine, which have reached similar determinations on state constitutional grounds.

….

The proposed purpose of economic development, with its incidental enhancement of tax and employment benefits to the surrounding community, clearly does not fall within any of these categories of express constitutional exceptions to the general rule against the taking of private property for private use. To permit the inclusion of economic development alone in the category of "public use" or "public purpose" would blur the line between "public" and "private" so as to render our constitutional limitations on the power of eminent domain a nullity. If property ownership in Oklahoma is to remain what the framers of our Constitution intended it to be, this we must not do.

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We further hold that takings for the purpose of economic development alone (not in connection with the removal of blighted property) do not constitute a public use or public purpose to support the exercise of eminent domain as a matter of Oklahoma constitutional law, nor does it satisfy the public purpose requirement of 27 O.S.2001 § 5.

Another reason to move the federal capitol to Oklahoma City?