Thoughts about Ballot Question 1

In addition to voting for electors for President and Vice President, for a United States Senator, and for a member of the House of Representatives, Virginians will be voting for two Ballot Questions concerning amendments to the Constitution of Virginia.

Ballot Question 1 states:

Shall Section 11 of Article I (Bill of Rights)of the Constitution of Virginia be amended (i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use?

Eminent domain - the power of government to take (with just compensation) private property for public use - has been on the public radar since the U.S. Supreme Court held that New London, Connecticut had every right to take a home that stood in the way of commercial development. The outrage was nationwide. In Virginia that anger was translated into 2007 legislation that prohibited government from condemning property for private purposes. This reasonable legislation is still in effect.

Some, like the Virginia Farm Bureau, fear the current law could be weakened legislatively and wants an amendment to the Virginia Constitution to assure its staying power. That's all well and good. But the proposed amendment adds provisions - provisions that could sink us in an expensive legal swamp - into the eminent domain cauldron. Before we look at that issue, voters should be aware that, if passed, this amendment would not affect the power of the federal government regarding eminent domain.

Ballot Question 1 contains the following language that raises questions about how the General Assembly will define lost profits and access:

Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms “lost profits” and “lost access” are to be defined by the General Assembly.

Current law awards compensation if the property is landlocked after the taking. Under the amendment any reduction of access might be grounds for compensation. So a new median blocking an easy left turn into a McDonald's or a farmer having to divert his hay wagon from a preferred lane might prompt a lengthy court battle and increase the costs of a new road.

The "lost profits" provision is even stickier. Lost profits for how long? How can the legislature or a judge predict future profits that are determined by supply and demand? If the "lost profits" are awarded to a restaurant that soon thereafter goes out of business does it get refunded?

While most Americans want to protect private property rights, they also want to have new roads or utilities such as water, sewer, and electricity done at the lowest possible costs to taxpayers and consumers. This amendment threatens the ability of state and local government to provide those improvements as cheaply as possible.

Ballot Question 1 will be a hay day for two groups - the lobbyists who will twist legislators arms about the enacting legislation and the lawyers who will argue the cases. Beware of the unintended consequences of well-intentioned legislation. The devil, as always, is in the details. Ballot Question 1 should go back to the drawing board.

Pitchfork Rebellion

Virginia is one of only two states in which the legislature appoints judges, frequently in a partisan deal made largely behind closed doors. The other state with legislative judicial appointments is South Carolina. Some other states elect judges complete with all the campaign funds, lobbyists, and political parties - talk about partisan and potentially corrupting.

But, about 30 states use a variation of the Missouri Plan which attempts to remove most of the partisanship. Judges are selected on the basis of merit through a process that uses a nonpartisan commission to review applications, interview candidates, and select three names which are submitted to the governor. Usually the governor picks one, but if not, the commission selects one after 6o days. Not to be left out, the voters also have a say. After serving for a year the judge stands for a retention election at the next general election.

CCC commented on the Virginia's system of Judging Judges back in August. The 2009 session of the General Assembly saw some of the same deal making and gridlock over appointments that characterized prior sessions. Also bitter arguments over the evaluations of judges. The legislature ended this year with vacancies in several courts (although rumor is they may try to deal with that at the reconvened session next month).

Meanwhile, a citizens group calling itself the Pitchfork Rebellion is calling for term limits for judges, citizen input in the selection of judges, open hearings, and a new judicial evaluation system. It grew out of dissatisfaction with the selection of judges in Fairfax Co., Hampton Roads, and Chesterfield Co. Organizers connected with each other online and now plan to set up a nonprofit group to coordinate activities and raise the issue statewide. Elizabeth Hering of Leesburg, one of the leaders of the movement, said:

"Overall, our goal is to take back our courts and achieve some measure of judicial accountability in Virginia and weed out bad jurists. No man should be above the law. However, we have a judiciary with absolute, unfettered power."

In fundamental ways, the judge selection process shares some striking similarities with the redistricting process for legislative seats. Both processes:

• are controlled by the General Assembly
• bring out the worst abuses of partisanship
• sometimes result in unnecessary gridlock
• are more about holding power than good government
• run contrary to ideals of democracy - citizen involvement, liberty, fairness, and accountability of public officials
• have been successfully reformed in other states by delegating responsibility to nonpartisan commissions
• require (for meaningful and lasting reform) amending the Virginia Constitution

Things move slowly in Virginia politics. There is a bit of arrogance that we do things right in the Commonwealth and can't learn better ways from other states. It often takes many years and multiple sessions to finally enact good ideas. With a gubernatorial election and 100 members of the House of Delegates facing voters (in their gerrymandered districts), 2009 would be a good time to put reform of redistricting and the selection of judges squarely on the front burner of political discussions. Grab your pitchfork!

Quotes from the grist mill

"So I suppose you have to first ask the question, can we improve on a document drafted by George Mason?"

~ House Minority Leader Ward Armstrong commenting on Delegate Chris Saxman's proposed bill to rewrite provisions of Virginia's constitution.

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"Cantor may think the greatest economic crisis in 70 years is a joke, but we don't."

~ AFSCME President Gerald W. McEntee remarking on a profanity-laced video clip sent out by U.S. Rep. Eric Cantor's office. More.