Richardson First Governor to Veto Eminent Domain Protection

Published June 1, 2006

New Mexico Gov. Bill Richardson (D) became the nation’s first governor to veto legislation aimed at protecting individual property owners from eminent domain abuse.

On March 7, Richardson vetoed House Bill 746, a measure sponsored by state Rep. Richard Cheney (R-Farmington), which would have prohibited the state or local governments from using eminent domain to take property and turn it over to a developer or other private entity within five years of the property’s condemnation.

Cheney’s bill had received unanimous support from New Mexico lawmakers.

Richardson explained his veto by saying the bill’s ambiguous language could have stopped public projects simply because private entities play a role in the project. Richardson also noted some municipal officials opposed the measure.

Governor’s ‘Disregard’ Slammed

Cheney responded angrily, saying, “The final bill itself was a good compromise” and that he “couldn’t understand why the governor would have vetoed it.” Cheney added, “I do hope it will hurt him politically, and I believe it will.”

Richardson is up for reelection this year. The presumptive Republican challenger, J.R. Damron of Santa Fe, jumped on Richardson’s veto. Days after the veto, the Damron campaign held a news conference to denounce the decision as just one more example of how great the governor’s disregard really is for New Mexico families.

Protections Passed Unanimously

The bill was offered in response to the June 2005 U.S. Supreme Court decision in Kelo v. New London, which dramatically weakened the Constitution’s Fifth Amendment prohibition on the taking of private property for public use without just compensation. Under the Kelo ruling, any eminent domain taking, even for the express benefit of another private entity, is legal so long as the condemning authority has a plan and officials believe some public benefit would result from the taking.

Although the High Court’s decision was a blow to property owners nationwide, it explicitly allowed states to place restrictions on the use of eminent domain. That has been happening nationwide since the decision was handed down. According to the Institute for Justice, whose lawyers defended homeowners in the Kelo case, more than 40 states have bills under consideration, and six have already passed bills to address the Court’s decision.

Several Protections Presented

In New Mexico, several proposals were introduced during the 2006 legislative session that would have addressed private-to-private takings. The strongest was a constitutional amendment introduced by Rep. Thomas Anderson (R-Bernalillo County). Anderson’s proposed amendment never made it out of committee.

While amending New Mexico’s constitution was a no-go in 2006, there was bipartisan support for addressing the eminent domain issue through legislation. Cheney introduced legislation that as originally worded would have prohibited the use of eminent domain if the taking is to promote private or commercial development and title to the property is transferred to another private entity.

The protections in Cheney’s bill were subsequently weakened to prohibit the transfer of property from one private interest to another private interest for five years. The watered-down wording passed both houses unanimously.

After vetoing the bill, Richardson promised to create a task force to study the eminent domain issue and propose legislation that he said in a statement would appropriately protect private property from condemnation geared solely at private commercial development. The governor offered no details on how he would do this and set no timetable for legislative action.

Paul J. Gessing ([email protected]) is president of the Rio Grande Foundation in Tijeras, New Mexico.