Last year, I wrote about the case of Hinga Mbogo, a Dallas auto shop owner whose property was retroactively rezoned to make way for restaurants and other businesses more to the liking of the Dallas city council. In late August, the Texas Supreme Court refused to hear his case, thereby forcing Mbogo to abandon the property where his business has operated for thirty years.
When Mbogo opened his shop, he adhered to the arbitrary rules established by the Dallas zoning ordinance. And for years, the city accepted his business in that location. But, when city council decided that Ross Avenue would be a good place for chain restaurants, they changed how Mbogo’s land could be legally used. And in the process, they made him a criminal.
This is the rule of whim. At first, city officials arbitrarily declared what types of land uses were legal along Ross Avenue. Then, years later, they arbitrarily changed their minds and demanded that those who had adhered to the city’s previous declarations get up and move.
For Mbogo, the American dream has turned into a Soviet-style nightmare. The Kenyan immigrant opened and operated a successful business for decades. But the government that is supposed to protect his rights–including his property rights–has become the violator of his rights. It was bad enough that the Dallas city council attempted such a travesty of justice and the rule of whim. It is sickening that the Texas Supreme Court sanctioned it.
Retroactive laws are, by their very nature, ex post facto laws and are prohibited by the Constitution. In Mbogo’s case, the retroactive law made illegal what had been legal for decades. If this arbitrary law is allowed to stand, then no property use in Texas is safe.