Public Comment. Volume III - Montana Legislature

own property as multi-billion-dollar international corporations or a vast government bureaucracy
must meet to seize their property is simply another nail in the landowner's coffin.
Raising the bar for condemnors in eminent domain proceedings is a small step in the right
direction. Montana's eminent domain law is nearly 125 years old, and pre-dates statehood. It has
remained largely unchanged since that time, and is as good as it gets for big business and big
government. It was designed to facilitate westward expansion and the settlement of Montana
Territory. Montana needs a new eminent domain law to deal with the needs of the 2 1" century.
Why should condemnors be held to a higher evidentiary standard than condemnees?
Because the right to possess and protect one's own property is an enumerated inalienable right,
and guaranteed by Article 11, section 3 of Montana's Constitution (1972). Property cannot be
taken without due process (Art. 11, sec. 17) and cannot be taken or damaged without just
compensation (Art. 11, sec. 29). While eminent domain is a necessary component to our society, it
is appropriate that the bar be raised so that a higher burden is met before depriving landowners of
their fundamental rights.
Your memo dated March 27,2000, asked specifically how raising the standard for
burdens of proof might impact business. From an economic perspective, raising the bar to protect
landowners makes sense. Time and time again, agriculture has ranked as Montana's number one
industry. Yet agricultural people are more often than not the target of eminent domain actions. As
landowners have testified in Helena and Billings, the threat of condemnation hangs over farmers'
and ranchers' heads, depressing the value of perhaps their most necessary asset - their land.
Landowners, unlike some large utilities with the power of eminent domain, are here to stay.
Raising the standard for burdens of proof for condemnors will not unduly harm either big
business or big government. Throughout the code, the legislature requires a showing of clear and
convincing evidence in civil court cases. Examples include:
The State must show clear and convincing evidence to get an injunction against
someone who violates Montana's gambling laws. Section 23-5-136(1)(a), MCA.
A plaintiff in a fraud case must prove hisiher claim for punitive damages by clear and
convincing evidence. Section 27- 1-22 1(5), MCA.
Securities brokers are not liable for fraud claims unless the claims are proven by clear
and convincing evidence. Section 30-10-3 10(3), MCA.
Employees may only recover punitive damages for wrongful discharge if they prove '
their case with clear and convincing evidence. Section 39-2-905(2), MCA.
In order to gain child suppofl above and beyond Dept. of Public Health and Human
Services guidelines, a parent must prove their case with clear and convincing
evidence. Section 40-4-204(3)(a), MCA.
Landlords must prove tenants damaged rental property, with clear and convincing
evidence, if they seek to recover monetary damages and failed to provide the tenant
with a written statement of the prior condition of the property. Section 70-25-206(3),
MCA.
Wills can only be revoked by prior wills using clear and convincing evidence.
Section 72-2-527(3)-(4), MCA.
To prove an infraction of a municipal ordinance, a city must prove its case by clear
and convincing evidence. Section 7- 1-4 15 1(1)(b), MCA.
March 31,2000
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