"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.


Probably no decision of the U.S. Supreme Court in recent years has energized people across so wide a spectrum as its decision in Kelo v. City of New London (No. 04-108), holding that local governments could condemn property solely for the purpose of upgrading its economic value. Most Americans have understood that property can be condemned (provided fair payment is given) for an important public purpose. Last year’s Kelo decision put property ownership at the mercy of private developers as well. In sum, this time, everyone’s property is at imminent risk. (Our view is that this was one of the worst Supreme Court decisions in recent years.)

Around the country and in congress, lawmakers have been at work to keep local governments which haven’t been doing this sort of thing (in a number of areas it’s been common practice for some time) from starting. The Idaho Legislature was not inactive in this area: Eminent domain was a big topic of discussion last session. Lawmakers produced and passed, without a single dissenting vote, House Bill 555, which blocked Idaho local governments from doing much of what the Supreme Court had suggested they otherwise could. It set out, effectively, “to provide limitations on eminent domain for private parties, urban renewal or economic development purposes.”

That seems not to have stopped, however, the backers of the Private Property Rights Protection Initiative, which is still (the days grow short: People now are being paid to circulate the petitions) gathering petition signatures to stave off the effects of the Supreme Court decision. Which would seem to have been effectively staved off already by the legislature. Or is that it’s real intent?

The name most associated with the initiative is Laird Maxwell, for some years an anti-tax and anti-regulatory activist at Boise, visible through Idahoans for Tax Reform, although the underwriters of him and it are less public. In 2003 Maxwell was the unseen “John Doe” who ordered and financed a mass of phone calls attacking Boise mayoral candidate Chuck Winder, a Republican, from the right, as being insufficiently “conservative.” But who Maxwell was working for and collecting money from, in that case (he has said he was a lone wolf, but that seems unlikely) as in this, remains unknown.

The first part of this year’s intiative, as billed, seeks to limit eminent domain (much as the legislature already has). But the second part, less publicized, would try to graft on to Idaho law a rough equivalent to Oregon’s recently-passed Measure 37, which tries to exempt from application any land use ordinances passed after a given piece of property was purchased.

That Oregon measure, drafted to deal with a land use regulatory situation light years away from Idaho’s, is still poorly understood, and few Oregonians yet know how it will play out. (Probably no one does.) What reason the Idaho measure’s backers have for attaching it to an eminent domain initiative is left mostly unstated, other than that it all falls under the rubric of “property rights.”

But therein lies the other problem. A court is hardly likely to conclude that this initiative is just one legal subject, however they might be united in rhetoric: Eminent domain and land use planning are different legal topics. If this initiative gets on the ballot (uncertain), and if it passes (likely if it reaches the ballot), it will almost certainly be thrown out by the courts, because it clearly violates the multiple-topic restriction.

Thereby encouraging, right on schedule, the latest whine about activist courts. Activist initiative backers tend to draw fewer howls.

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