Oklahoma Supreme Court Apparently Rejects Takings for Economic Development Purposes,

Diverges from the Supreme Court's Kelo Decision: That's what Board of County Com'rs of Muskogee County v. Lowery, 2006 WL 1233934 (Okla.), decided last Tuesday, appears to hold. I haven't read the whole opinion yet, but here's what seems to be a key excerpt (some paragraph breaks added):

To the extent that our determination may be interpreted as inconsistent with the U.S. Supreme Court's holding in Kelo v. City of New London, today's pronouncement is reached on the basis of Oklahoma's own special constitutional eminent domain provisions, Art. 2, ยงยง 23 & 24 of the Oklahoma Constitution, which we conclude provide private property protection to Oklahoma citizens beyond that which is afforded them by the Fifth Amendment to the U.S. Constitution.

In other words, we determine 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. We join other jurisdictions including Arizona, Arkansas, Florida, Illinois, South Carolina, Michigan, and Maine, which have reached similar determinations on state constitutional grounds. Other states have similarly restricted the government's eminent domain power through state statute.

While the Takings Clause of the U.S. Constitution provides "nor shall private property be taken for public use without just compensation," the Oklahoma Constitution places further restrictions by expressly stating "[n]o private property shall be taken or damaged for private use, with or without compensation." That constitutional provision additionally expressly lists the exceptions for common law easements by necessity and drains for agricultural, mining and sanitary purposes. The proposed purpose of economic development, with its incidental enhancement of tax and employment benefits to the surrounding community, clearly does not fall within any of these categories of express constitutional exceptions to the general rule against the taking of private property for private use.

To permit the inclusion of economic development alone in the category of "public use" or "public purpose" would blur the line between "public" and "private" so as to render our constitutional limitations on the power of eminent domain a nullity. If property ownership in Oklahoma is to remain what the framers of our Constitution intended it to be, this we must not do.

This marks one of the few examples of Brennan's "New Judicial Federalism" which can result in a politically "conservative" outcome. The Second Amendment provides another such opportunity.
5.17.2006 3:34pm
John Jenkins (mail):
Oklahoma cases are available online. This case is available at Board of County Commissioners of Muskogee County v. Lowery, 2006 OK 31.
5.17.2006 3:56pm
How does a state decision "diverge" from Kelo when the holding of Kelo is that the issue is left up to the states to decide?
5.17.2006 4:11pm
Nobody (mail):
It's a shame that activist judges feel the need to overreach--they must think they know better than the democratically elected legislature.
5.17.2006 4:12pm
John Jenkins (mail):
Nobody, what are you talking about? The Oklahoma Constitutional provision is more restrictive on its face than the Fifth Amendment. Interpreting away the limiting language would have been "activist" in the sense of diverging from the Constitution.
5.17.2006 4:14pm
Dispassionate Observer:
This gives incentives for taxpayers and citizens to ensure that their state constitutions provide the same protections that the U.S. Supreme Court has refused to provide taxpayers and citizens under the Constitution.

Has anyone noticed that the Supreme Court has handed in so many victories to corporations lately? The ridiculous standing decision a few days ago.
5.17.2006 4:14pm
Anonymous Jim:
"This marks one of the few examples of Brennan's "New Judicial Federalism" which can result in a politically "conservative" outcome. The Second Amendment provides another such opportunity."

Could you explain how? It seems to me that if the feds have an assault weapon ban and U.S. Sup Ct says ok, a State couldn't then say that the ban does not apply in the State.
5.17.2006 4:24pm
Anonymous Jim:
I'll try to explain. Let's assume that the Supreme Court decides that there is no constitutional right under the 2d amendment to possess anything other than common sporting weapons (no handguns, cannons, machine guns, or the like). Assume further that Congress doesn't legislate any further on the subject than it already has. Under the "New Judicial Federalism" model, States A &B can pass legislation banning private possession of handguns (which Congress hasn't done). Litigants in each state can bring cases based on whatever "right to bear arms" provisions might exist in their respective state constitutions. One or both states can then decide that the state constitution protects the right to possess hansdguns and strike down the state statutes. If Congress acts, that's a different matter, a supremacy clause question rather than a new judicial federalism question.
5.17.2006 4:41pm
Yay! My state got something right!

-Rob, from Sooner Country
5.17.2006 5:06pm
great unknown (mail):
The Court did not overrule the democratically elected legislature. The governmental level involved was county, and there was no legislation at issue. The question was one of interpretation of "public use", and the Court ruled that the county did not have the right to circumvent the Oklahoma constitution via creative interpretation. I would say that the judges were actually quite conservative.
5.17.2006 6:07pm
JunkYardLawDog (mail):
Dispassionate Observer,

Corporations are not some thing. They are a legal fiction. They don't exist. Things that don't exist can neither be good nor evil nor can they pay taxes, btw. Corporations are merely groups of human beings interacting with other groups of human beings. The human beings can be good or evil and can pay taxes. Corporations don't exist. First thing taught in law school corporations class right?

Says the "Dog"
5.17.2006 7:10pm
D-Day (mail) (www):
Does anyone happen to know the citation for the similar Arizona case?
5.18.2006 3:11am
bwilliamsdc (mail):
Under the "New Judicial Federalism" model, States A &B can pass legislation banning private possession of handguns (which Congress hasn't done).

Why would it require a specific model for states to ban private possession of handguns if the Second Amendment hasn't been incorporated?
5.18.2006 12:40pm
bwilliamsdc (mail) (www):
(or were you suggesting this would only be relevant in states that had additional gun protections in their state constitution?)
5.18.2006 12:43pm