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2007 Eminent Domain Report Card: Oklahoma Gets An “F”

Arlington, Va.—Oklahoma home and small business owners have reason to be concerned according to a 50-state eminent domain report card released today. In the two years since the infamous Kelo eminent domain ruling from the U.S. Supreme Court that allowed eminent domain for private gain, Oklahoma failed to pass eminent domain reform.

“Oklahoma homeowners are no more protected from eminent domain abuse today than they were the day the Kelo decision was announced,” said Steven Anderson, director of the Castle Coalition, a national grassroots organization that examined and graded eminent domain laws for each of the 50 states since the Kelo ruling. Read the report at: www.CastleCoalition.org/publications/report_card.

In response to Kelo, the Oklahoma Legislature formed several study committees preceding the 2006 session, the report stated.

Then, in May 2006, the Oklahoma Supreme Court rejected the U.S. Supreme Court’s Kelo decision that permitted eminent domain for private development, ruling instead in Board of County Commissioners of Muskogee County v. Lowery that economic development is not a constitutional reason to use eminent domain under the Oklahoma Constitution. The Court originally heard the case in 2004, before the Kelo decision. In Lowery, Muskogee County sought to take an easement for water pipelines for a private electric generation plant. The stated purpose of the condemnation was “economic development.” Noting that the U.S. Supreme Court had explicitly reminded states that they did not have to follow the Kelo decision in interpreting their own constitutions, the Oklahoma Supreme Court concluded 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.”

However, the Court said that its decision does not apply to condemnations for “blight.” Unfortunately, the definition of “blight” under Oklahoma law is so broad that virtually any neighborhood would qualify. That means cities could switch to condemnations under the Neighborhood Redevelopment and Oklahoma Housing Authorities Acts.

The report found, “Last year there was an excellent constitutional amendment, House Joint Resolution 1057 (2006), that would have stopped this from happening. The bill made it all the way to conference committee only to die in the last days of session due to the confusion over the protections Lowery actually offers. The legislature failed to pass needed reform again this session. In fact, the only momentum was for another study committee. Until reform is passed, Oklahomans will still be vulnerable to eminent domain abuse.”

Among the states that passed the strongest reforms protecting property owners are Florida, Michigan, Nevada, New Mexico, North Dakota and South Dakota, each of which received an A or A- grade. States that received F’s were: Arkansas, Connecticut, Hawaii, Maryland, Massachusetts, Mississippi, New Jersey, New York, Oklahoma and Rhode Island.

“In only two years since Kelo, 41 states have reformed their laws to offer greater protection to small property owners,” said Jenifer Zeigler, legislative affairs attorney with the Castle Coalition. “But much more work remains if homeowners, small business owners, churches and farmers in Oklahoma and beyond are to be safe from the unholy alliance of tax-hungry governments and land-hungry developers.”

The report seeks to step back and evaluate the legislative work that has been done and is left to do. It finds, “Some states have passed model reforms that can serve as an example for others. Some states enacted nominal reform—possibly because of haste, oversight or compromise—and need to know what is left to fix. And finally, there are those states that have failed to act altogether, leaving home, farm, and business owners threatened by Kelo-type takings and beyond.”

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[NOTE: To arrange interviews on this subject, journalists may call John Kramer, the Institute for Justice’s vice president for communications, at (703) 682-9320 ext. 205 or in the evening/weekend at (703) 527-8730. For more information on eminent domain abuse, visit www.ij.org or www.castlecoalition.org.]

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