Ombudsman Act Exposed

The Ombudsman Act is listed under ALEC's Energy, Environment, and Agriculture Task Force and was included in the 1996 ALEC Sourcebook of American State Legislation. According to ALEC.org, the Act was approved by the Board of Directors in 2004. (Accessed on 7/23/2015).

CMD's Bill Summary

This "model" bill attempts to limit environmental regulations. The Constitution's Fifth Amendment prohibits the federal government from "taking" private land without just compensation. Right-wing activists have been pushing courts to conclude that a regulation that may limit the use of property, such as environmental, zoning, or land use regulations, can also be considered a "taking" requiring compensation for not polluting -- as a way to stop environmental protections. Although the U.S. Supreme Court has held that a regulation can be a taking requiring compensation when it "goes too far," such as when it deprives the property owner of "all economically beneficial uses," many on the right have tried expanding the "takings" definition to basically any reduction in property value. This wish list legislation would create an Ombudsman purportedly to protect property owners from takings, at taxpayer expense, including intervening in judicial, administrative, and legislative proceedings. The Ombudsman could take an adversarial stance towards the legislature's efforts to regulate land use and preserve human health and the environment. The Act itself seems to imply it is directed at so-called "regulatory" taking: Sec. 2(2)(e), for example, it exempts from "takings" analysis the repeal of "laws or rules that inhibit the expansion of free markets," even if doing so diminishes property values, which suggests that all other regulations (or regulatory repeals) that diminish property value are covered by the Act. The model bill also provides an exemption for the formal exercise of "Eminent Domain," which states have been using in recent years to give corporations access to land for energy exploration.

ALEC Bill Text

Summary

This Act insures proper safeguards are in place to protect the rights of property owners guaranteed in the U.S. Constitution and state constitutions.

Model Legislation

Section 1. {Short title}

This Act may be referred to as the Ombudsman Act.

Section 2. {Definitions}

The following words, in this Act, have the meaning set forth below:

(A) “Constitutional taking” or “taking” means that due to a governmental action or proposed government action private property is or will be taken and compensation to the owner of that property is required by either:

(1) The fifth or fourteenth amendment to the Constitution of the United States of America.

(2) The {insert article} of the Constitution of {insert state}.

(B) “Governmental action” or “action”

(1) Means any action by a state agency consisting of:

(a) Proposed rules and emergency rules that if adopted and enforced may limit the use of private property.

(b) Proposed or implemented licensing or permitting conditions, requirements or limitations applicable to the use of private property.

(c) Required dedications or extractions from owners of private property.

(2) Does Not Include:

(a) Activity in which the power of eminent domain is formally exercised.

(b) Repealing rules to limit governmental programs or amending rules in a manner that lessens interference with the use of private property.

(c) Law enforcement activity involving the seizure or forfeiture of private property for violations of law, or as evidence in criminal proceedings.

(d) Orders that are authorized by statute, that are issued by a state agency or court of law and that re issued as a result of a violation of state law.

(e) Repealing laws or rules that inhibit the expansion of free markets in industries or sectors that were previously protected from competition or which benefited from a government entitlement, quota, subsidy, protection or other preferential treatment that would not have occurred in a competitive market.

(C) “Private property” means any real or personal property that is protected by either:

(1) The fifth or fourteenth amendment to the Constitution of the United States of America.

(2) The {insert article} of the Constitution of {insert state}.

(D) “State Agency” means an officer or unit of the executive branch of state government that is authorized by law to adopt rules. State agency does not include the legislative and judicial branches of state government.

Section 3. {Ombudsman for Private Property Rights}

(A) An Ombudsman Office is established in the offices of the {insert state} legislative council to represent the interests of private property owners in proceedings involving government action.

(B) The director of the {insert state} legislative council shall appoint the ombudsman, who serves at the pleasure of the director of the legislative council.

Section 4. {Powers and duties of the Ombudsman}

(A) The Ombudsman {insert shall or may}:

(1) Research, study and analyze issues that may involve Constitutional takings.

(2) Prepare and present briefs and arguments, intervene or appear on behalf of private property owners in general or specific private property owners in any judicial, legislative or administrative hearing or proceeding as a party or otherwise.

(3) Advise property owners on issues involving or relate to Constitutional takings.

(4) Employ and terminate employees, or contact for specific services, as necessary to carry out this article, including legal counsel and other professional and administrative staff that are necessary to represent and advocate the interests of private property owners.

(5) Receive complaints and inquiries from private property owners regarding Constitutional takings.

(6) Within thirty days after the end of each calendar quarter, submit a report to the Governor, President of the Senate, and Speaker of the House of Representatives describing the activities and accomplishments of the office.

(B) The Ombudsman’s office shall record all contacts by private property owners with regard to alleged constitutional takings to determine general concerns of private property owners. The office may advise private property owners of the services available from governmental and other agencies that may be of further assistance.

Section 5. {Severability clause}

Section 6. {Repealer clause}

Section 7. {Effective date}

ALEC's Sourcebook of American State Legislation 1996