Michigan's Legislature Seems To Be Considering Legislation That Would Be Dead On Arrival

A strange thing is happening.

I am not sure if it is the disease that has spread from the federal administration and is now infesting the minds of Michigan legislators is curable, but we had better get a handle on it.  Ignoring the constitution of the US by the president, and now that of Michigan by its lawmakers seems to be happening at a near feverish pace.

For the sake of not embarrassing 14 Michigan congress critters for their inability to serve articles of impeachment, we’ll forgo the multitude of Obama violations in this essay.  And perhaps we can breath a little easier (but only a little) that our legislators don’t enjoy the benefits of a Pen and a Phone, and a cowardly congress to make their abrogations easier.

Currently, and perhaps for very a reasonable cause, there is legislation that has already passed the house designating as legal, a violation of Michigan’s constitution as amended in 2006.  Perhaps without realizing it, State Representatives have passed 69-41, HB 5255.  The legislation is part of a package that will provide a mechanism for carbon sequestration, and apparently provide as well, a means for the use of CO2 as an alternative to fracking fluids or for pressurizing depleted wells.

OK, cool.  It seems to be an answer that will unfreak those who are worried about the use of freshwater at those ‘alarming levels’ now employed to crack the shale and release natural gas.  Or perhaps even just to use the CO2 to push out the remaining product that is not flowing under its own natural pressure.

Either way, there is a TEENSY little problem, and it is as simple as the line in HB 5255 that reads

A person described in section 1 may condemn property by eminent domain,may use the highways in this state to acquire necessary rights-of-way for any of the following purposes:

(a) To transport crude oil or petroleum or carbon dioxide substances.

(b) To locate, lay, construct, maintain, and operate pipelines for the purposes of subdivision (a).

Huh.

Well then lets see what section 1 has say about who that is.

Every corporation, association or person now or hereafter exercising or claiming the right to carry or transport crude oil or petroleum, or any of the products thereof, by or through pipe line or lines, for hire, compensation or otherwise, or now or hereafter exercising or claiming the right to engage in the business of piping, transporting or storing crude oil or petroleum, or any of the products thereof, or now or hereafter engaging in the business of buying, selling or dealing in crude oil or petroleum, within the limits of this state, shall not have or possess the right to conduct or engage in said business or operations, in whole or in part, as above described, or have or possess the right to locate, maintain, or operate the necessary pipe lines, fixtures, and equipment thereunto belonging, or used in connection therewith, concerning the said business of carrying, transporting or storing crude oil or petroleum as aforesaid, on, over, along, across, through, in or under any present or future highway, or part thereof, or elsewhere, within this state, or have or possess the right of eminent domain, or any other right or rights, concerning said business or operations, in whole or in part except as authorized by and subject to the provisions of this act, except, further, and only such right or rights as may already exist which are valid, vested, and incapable of revocation by any law of this state or of the United States.

In a nutshell, anyone in the Oil and Gas Business?

Unless it violates a constitutional protection. And we were pretty sure that voters in 2006 had settled that issue.

§ 2 Eminent domain; compensation.

Sec. 2.

Private property shall not be taken for public use without just compensation therefore being first made or secured in a manner prescribed by law. If private property consisting of an individual’s principal residence is taken for public use, the amount of compensation made and determined for that taking shall be not less than 125% of that property’s fair market value, in addition to any other reimbursement allowed by law. Compensation shall be determined in proceedings in a court of record.

“Public use” does not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenues. Private property otherwise may be taken for reasons of public use as that term is understood on the effective date of the amendment to this constitution that added this paragraph.

In a condemnation action, the burden of proof is on the condemning authority to demonstrate, by the preponderance of the evidence, that the taking of a private property is for a public use, unless the condemnation action involves a taking for the eradication of blight, in which case the burden of proof is on the condemning authority to demonstrate, by clear and convincing evidence, that the taking of that property is for a public use. (146)

Any existing right, grant, or benefit afforded to property owners as of November 1, 2005, whether provided by this section, by statute, or otherwise, shall be preserved and shall not be abrogated or impaired by the constitutional amendment that added this paragraph.

History: Const. 1963, Art. X, § 2, Eff. Jan. 1, 1964 ;– Am. S.J.R. E, approved Nov. 7, 2006, Eff. Dec. 23, 2006
Former Constitution: See Const. 1908, Art. XIII, §§ 1-5.

And for those of you who are NOT CLEAR on the difference between ‘public good’ and ‘public use?’ Try thinking of it this way, Public use is that which is owned collectively through government; a school, roads, county parks.  Public good can be a subjective matter, and is not necessarily a function of community ownership.  Its GOOD to have jobs, but is it correct to take property from some to make jobs for others, even IF there is a perceived net benefit; a benefit which could be considered in the interest of the public as a ‘good’ thing?

No.  That dance was clarified in the section cited above.

But it is entirely possible legislators might try to hang their hats on this part of Sec 213.23:

(2) The taking of private property by a public corporation or a state agency for transfer to a private entity is not a public use unless the proposed use of the property is invested with public attributes sufficient to fairly deem the entity’s activity governmental by 1 or more of the following:

(a) A public necessity of the extreme sort exists that requires collective action to acquire property for instrumentalities of commerce, including a public utility or a state or federally regulated common carrier, whose very existence depends on the use of property that can be assembled only through the coordination that central government alone is capable of achieving.

Of course a little problem with THAT might be the definition of Utilities, instrumentalities of commerce, or Federally regulated carriers.  We should ask what is considered ‘extreme’ as well. Under 213.23, the only other consideration is ‘blight’, and the remainder of 213.23 spells out a bit more, INCLUDING what is considered blight.

(3) As used in subsection (1), “public use” does not include the taking of private property for the purpose of transfer to a private entity for either general economic development or the enhancement of tax revenue.

(4) In a condemnation action, the burden of proof is on the condemning authority to demonstrate, by the preponderance of the evidence, that the taking of a private property is for a public use, unless the condemnation action involves a taking of private property because the property is blighted, in which case the burden of proof is on the condemning authority to demonstrate, by clear and convincing evidence, that the taking of that property is for a public use.

(5) If private property consisting of an individual’s principal residence is taken for public use, the amount of compensation made and determined for that taking shall be not less than 125% of that property’s fair market value, in addition to any other reimbursement allowed by law. In order to be eligible for reimbursement under this subsection, the individual’s principal residential structure must be actually taken or the amount of the individual’s private property taken leaves less property contiguous to the individual’s principal residential structure than the minimum lot size if the local governing unit has implemented a minimum lot size by zoning ordinance.

(6) A taking of private property for public use, as allowed under this section, does not include a taking for a public use that is a pretext to confer a private benefit on a known or unknown private entity. For purposes of this subsection, the taking of private property for the purposes of a drain project by a drainage district as allowed under the drain code of 1956, 1956 PA 40, MCL 280.1 to 280.630, does not constitute a pretext to confer a private benefit on a private entity.

(7) Any existing right, grant, or benefit afforded to property owners as of December 22, 2006, whether provided by the state constitution of 1963, by this section or other statute, or otherwise, shall be preserved and shall not be abrogated or impaired by the 2006 amendatory acts that added or amended this subsection.

(8) As used in this section, “blighted” means property that meets any of the following criteria:

(a) Has been declared a public nuisance in accordance with a local housing, building, plumbing, fire, or other related code or ordinance.

(b) Is an attractive nuisance because of physical condition or use.

(c) Is a fire hazard or is otherwise dangerous to the safety of persons or property.

(d) Has had the utilities, plumbing, heating, or sewerage disconnected, destroyed, removed, or rendered ineffective for a period of 1 year or more so that the property is unfit for its intended use.

(e) Is tax reverted property owned by a municipality, by a county, or by this state. The sale, lease, or transfer of tax reverted property by a municipality, a county, or this state shall not result in the loss to the property of the status as blighted for purposes of this act.

(f) Is property owned or under the control of a land bank fast track authority under the land bank fast track act, 2003 PA 258, MCL 124.751 to 124.774. The sale, lease, or transfer of the property by a land bank fast track authority shall not result in the loss to the property of the status as blighted for purposes of this act.

(g) Is improved real property that has remained vacant for 5 consecutive years and that is not maintained in accordance with applicable local housing or property maintenance codes or ordinances.

(h) Any property that has code violations posing a severe and immediate health or safety threat and that has not been substantially rehabilitated within 1 year after the receipt of notice to rehabilitate from the appropriate code enforcement agency or final determination of any appeal, whichever is later.

Today, HB 5255 is going to the Michigan Senate Energy & Technology committee at 1PM.

We must wonder under what conditions our legislative bodies will try to circumvent the constitution of our state. Because on the face of the legislative package surrounding HB 5255, there is little to show a viable path to its implementation.

To which we say THANK YOU to the voters in an 80-20 election who stepped up to block such mechanisms in 2006.

You Betcha! (0)Nuh Uh.(0)