Monday, October 16, 2006

Anti-Corporate Farming Law in Nebraska

Amy Broadmoore's post (immediately below) is quite interesting and I look forward to her further insights. Nebraska's version of that legislation (embodied in our State Constitution) is currently in the throes of litigation. Jones v. Gale is the case, and the district court recently ruled that it was unconstitutional on dormant-commerce-clause grounds and unlawful under the Americans with Disabilities Act. It is on appeal to the Eighth Circuit, and the oral argument (from late last month) can be accessed here. The case number is 06-1308.

Aside from its normative basis, the Nebraska provision is interesting for a couple of reasons. First, it was passed by ballot initiative. In the context of interpretation then, the intent that underlies the initiative is hard for a court to discern and a particularly weak basis upon which to argue for particular interpretations.

But, when it comes to discriminating against out-of-staters (one question dormant-commerce-clause doctrine raises), intent--specifically, discriminatory intent--is important. Thus, the second interesting point: the district court found that even if the provision's text did not discriminate against out-of-staters, it was unconstitutional because the ballot initiative language asked voters whether they wanted to ban non-Nebraska family farm corporations from owning farm land. Therein was the unlawful discrimination. The voters, of course, said yes. But the text of the provision does not really do that. It bans only non-family-farm corporations from owning agricultural land. So (among other things) discriminatory intent, without discriminatory language in the provision or discriminatory effects, has led to its downfall. And while intent or purpose may be relevant for some inquiries, it is not as helpful for others.

One other interesting fact about Nebraska's provision. When passed, there was little evidence of detached corporate ownership of agricultural lands in Nebraska. The political motivation for the initiative came from the landholdings of an insurance company that had acquired its interest through foreclosure (this was the late-80s after all). But significant questions exist concerning the necessity for this type of provision (aside from its purpose)--i.e., the real-world likelihood of what some would call "evil" corporate ownership.

The list of exceptions is quite interesting, and I look forward to Ms. Broadmoore's further comments.


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