Cuccinelli: Eminent Domain Amendment Prevents Government ‘Bullying’

Virginia Attorney General Ken Cuccinelli threw his weight behind Question 1 on the Nov. 6 ballot in Virginia, which limits government use of eminent domain, saying it often victimizes small property owners and minority communities during a panel discussion at the Old Dominion Boat Club.

“Have you ever heard of anybody trying to take Walmart’s property?” Cuccinelli asked. “I haven’t. Government is a bully, and bullies don’t pick on people who fight back.”

Cuccinelli joined George Mason Law Prof. Ilya Somin Thursday evening for the panel discussion on the future of property rights in Virginia. Cuccinelli disparaged the Kelo case, a 2005 U.S. Supreme Court ruling that held that general community benefits, such as economic growth, from private redevelopment qualified as a permissible public use.

He said the proposed Virginia amendment would provide for four things: blocking the use of eminent domain from one private owner to give to another private owner, taking more property than is needed to achieve public use, providing just compensation and shifting the burden of proof in eminent domain cases to from the government’s favor to the favor of the property owner.

Somin also spoke out against the Kelo ruling, noting that a majority of Americans and political actors both the right and left opposed it. States have responded by passing laws restricting eminent domain but often create an exception when the property in question is “blighted,” which in his opinion is too broadly defined.

Somin maintained the state needs a constitutional amendment on eminent domain to ensure that future state legislatures don’t erode property rights. However, the amendment is not clear on its definition of blight, and the state legislature determines what counts as lost profit or lost access.

“I think this is not a perfect amendment, but it is an improvement over the present constitution,” he said. “You could hardly have a worse constitution than what we presently have when it comes to these issues.”

One audience member asked the panelists whether the amendment, if passed, could be used to re-argue the court case that denied the boat club ownership of Wales Alley.

Cuccinelli said easements are part of property rights but didn’t know how the amendment could affect cases already decided in the courts. “Frankly, I’d be a little curious,” he said.

Somin said he didn’t think the amendment addresses existing cases but that one could make the argument it applies retroactively.

Another audience member asked which groups oppose the amendment. Cuccinelli said Realtors who opposed similar measures in the General Assembly have fallen silent on the issue now that it’s being put before the people. “It’s because they all know that the people support this protection,” he said. “They don’t want to be on the other side of this publicly.”

Now, only local governments are complaining, Cuccinelli said.

Somin predicted the proposed amendment would pass by a large margin. He said in 12 of 15 other states where the issue has been on the ballot, it passed, and the only times it has failed were times it was packaged with unpopular legislation.

Alexandria has raised the specter of eminent domain over some land owned by the boat club, although city officials recently have said that is not an option they are pursuing. Old Dominion Boat Club Board of Governors Chairman Eric DeSoto, who introduced Thursday’s speakers, spoke out against use of eminent domain with regard to the boat club.

“We’re hoping that this amendment will strengthen the inability to take and level the playing field,” he said.