A friend asked me about two items on the June California ballot - Proposition 98 and 99. They purport to respond to the Kelo decision. The Kelo decision (Kelo v. the City of New London) was the Rhenquist court at its worst. It involved a group of homeowners in middle class homes who wanted to stay in their neighborhood. The city of New London wanted to condemn their properties under the shoddy rationale that tax revenues were declining. They proposed to take that land and transfer it to a large local employer, Pfizer, for the development of a company conference center. The court, in a split decision, affirmed the right of the city to take the land. The swing vote in this travesty was Justice Kennedy. Justice O'Conner wrote the majority opinion.
Eminent domain is always a touchy issue. Traditionally it applied only to transfers for public purposes - roads and schools were most often. But in recent years jurisdictions have tried to use the power to cure what they perceive as "blight." The City of Sacramento had tried to use the power in seeking to revitalize the K Street Mall. Their manifest incompetence in managing this asset can be seen by simply walking down the mall. One shop owner, who I dealt with, was moved out of his place of business almost five years ago and the spot remains vacant. In this case the California Constitution sets a pretty high standard when land is taken for a public purpose “Private property may be taken or damaged for public use only when just compensation. . . has first been paid to. . .the owner.”
Proposition 98 is the more restrictive of the two. Like many propositions it could have benefitted from a public airing - but the legislature punted on the issue. It would set some very high standards for condemnations. Not only would it require stricter adherence to the state's constitutional standards but it would also allow property owners to begin to claim damages for governmental policies which have the effect of diminishing value. For example, most observers believe that it would allow property owners to reclaim value when environmental land use restrictions are adopted. It would also phase out rent controls in the state. The real question before the voters on Proposition 98 is whether these restrictions are too stringent.
Proposition 99 is a sham. It was written to confuse the voters. It does two things. First, it would establish the very limited restriction that governments could not transfer a private residence and transfer it to another private entity. Second, it creates a poison pill that if both propositions pass and 99 gets a higher vote, 98 is null and void.
My inclination is to vote against 99. I will do some more thinking about 98 but at this point I could be convinced.
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Eminent domain is a touchy issue - one that both sides seem to push a little too much. It's great to buy a person's property for some public good like a school - where else would we build schools in an urban environment? But Prop 98's diminishing value idea worries me a little. I can see a landowner claiming that environmental regulations have lowered the usefulness (and therefore value) of his property because he can't dump his waste there; in reality, (in my mind at least) those regulations were there to keep him from lowering his own property value by polluting and to keep him from lowering the public's common environment. That idea of claiming damages against disagreeable policies seems sort of anti-civic or anti-democratic - if we agreed to these laws as a civic contract (environmental protection, anti-blight, whatever), can one person say they need compensation because those laws devalue something of theirs? That's like a trucker suing the CHP (or the state, really) because he can't drive 150 on I-5 and the speed limit thereby devalues his business opportunity - he could do twice the work if he could only speed, right? Something itchy about that. Not totally sold yet.
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