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Friday, September 19, 2008

Chief Justice Miller: DM&E Eminent Domain Law Flawed

Dang: I guess we didn't need that push to refer SB 174 to a public vote. All we needed was one judge, Chief Justice Miller, to smell unconstitutionality in it. KELO reports that Justice Miller, the hearing officer in DM&E's request to use eminent domain for its coal train project, says he doesn't intend to "fully or blindly comply with or enforce the 90-day limitation" imposed by the new law because he considers it unconstitutional.

So does that count as judicial activism? And are landowners o.k. with that? That's something Sibby and I will have to think about....


  1. No, this isn't judicial activism, it's merely an unconstitutional provision within a statute. Folks who don't like an outcome often call rulings "judicial activism". Actually there is as much, if not more, right wing judicial activism as left leaning judicial activism.

    We charge justices and judges with making decisions that, by ommission or commission, we won't or can't. A legislature (especially a 1/12th part-time legislature) or rule-making executive agency cannot possibly foresee the full range of human behavior or natures acts.

    When issues in the gray areas of the law arrive in the court room, we demand a resolution, and not that a court merely sends all the gray-area controversies back to legislative or executive haggling. So a court has to use scant legislative or executive, guidance, and that found from other courts, to "fill in the blanks" in the law to render a decision - and in the process fills a legislative void and creates new law.

  2. This just sounds like solid checks and balances to me!

    Seriously, the legislature can pass whatever they want, but that doesn't automatically make it legal or enforceable.

  3. In this case, DM&E tried to use the law that they lobbyed hard to get passed in the 2008 legislative session to prevent landowners from getting due process. They were ordered to provide certain information prior to the eminent domain hearing set for Sept 22, 23, and 24. They refused to do so but thought the hearing would have to go ahead anyway because of the law. Justice Miller refused to be railroaded(so to speak) and ruled that, until DM&E complied with discovery requests, he would not set a hearing date. The legislature will have the opportunity in 2009 to overturn portions of the law, but I'm not holding my breath for them to do the right thing.


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