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Emergencies, Liberty, and Just Compensation

We Americans jealously protect our personal liberties including the freedom to go where we wish and how to get there, and the right to receive just compensation when our property is taken from us for public use. At the time of this writing, we are in the middle of a global pandemic, and any of our liberties are temporarily backstage. Our personal rights become less important to us in times of widespread crisis, times when we are keenly aware that we are all in this together and that we all need to sacrifice and work for the common good.

            All states have emergency powers, with statutes and constitutional provisions as to how those powers are to be administered. The Nebraska Emergency Management Act, Neb. Rev. Stat § 81- 829.38 et. seq. Authorizes the Governor to determine that an emergency exists due to imminent threat of serious damage, injury, or loss of life or property resulting from any natural or manmade cause. The Governor then has the authority to manage that emergency, including personal control of virtually all operations of state agencies. The Governor’s powers include control of the National Guard, suspension of regulations regarding the conduct of business, the authority to commandeer private property for public use if necessary to cope with the emergency, the power to compel the evacuation of persons from any threatened area, prescribe routes of transportation and control of the movement of persons in disaster areas, and dispensing or limiting the sale, dispensing or transportation of alcoholic beverages.

            What happens to the Constitutional right to receive your Just Compensation when your property is taken for public use in time of a declared emergency? That right is still protected, at least partially. The Act specifically recognizes the obligation to the State to pay compensation, which is to be calculated in the same manner as for takings under the Condemnation Laws of the State.

            The procedure for obtaining compensation will obviously be different. The Act states that a person seeking damages for use or destruction of property in a time of emergency shall file a claim with the Nebraska Emergency Management Agency. The procedure for the determination of Just Compensation for an emergency acquisition of property is not well tested, and hopefully, it will remain that way. Also, there is case law clearly stating that our Constitutional Right of Just Compensation is self-enacting not subject to statutory restrictions on the procedure to be followed. Will that control over the procedure for a claim filed with the Emergency Management Agency? Again, let’s hope we do not have to find out.

            If it becomes necessary to allow the State to take control of your property in order to cope with the emergency, you will do so, but you should ask for a written order stating that you must do so. Then, when the dust has settled, call an experienced Condemnation lawyer to assist you through the determination of just compensation.

By: William G. Blake

March 2020