The California League of Cities is trying to get an eminent domain "reform" referendum initiative on the ballot. In my comprehensive analysis of post-Kelo eminent domain reform enacted so far, I show that reforms enacted by referendum have generally been much stronger and more effective than those enacted by state legislatures. Unfortunately, the CLC initiative seems intended to give the appearance of promoting reform without actually limiting the government's condemnation power in any way. Obviously, the California local governments that belong to the CLC have an obvious interest in blocking efforts to constrain their authority to condemn private property for whatever purposes they see fit. With this Trojan horse initiative, the CLC probably hopes to stave off referendum initiatives proposed by property rights advocates that might actually give property owners meaningful protection. Section 9 of the initiative (which can be read here) explicitly states that, if enacted, the CLC initiative should be interpreted to superseded any other eminent domain reform initiative enacted at the same time if the two conflict, so long as the CLC proposal gets a higher number of votes than its competitor. Since pro-condemnation forces would campaign against any rival initiative, while leaving the CLC proposal effectively unopposed, it is likely that the CLC's brain child would indeed get more votes than any rival initiative, even though both would probably pass. Tim Sandefur of the Pacific Legal Foundation has all the other gory details about the CLC's proposal in three excellent posts here, here, and here.
As Tim shows, the CLC initiative protects only owner-occupied residences against condemnation for transfer to "private persons," while leaving renters and small businesses completely unprotected. And even the protection for homeowners is largely meaningless because the text of the proposed law 1) allows the condemnation of owner-occupied homes if it is "incidental" to a "public" project, and 2) seems to enshrine into law the definition of public use adopted by the Supreme Court in the Kelo decision, which gives government nearly unlimited power to condemn property for "economic development" purposes. Tim also points out that the ban on condemnation of owner-occupied homes for transfer to "private persons" could easily be circumvented by declaring that the new owners of any condemned property are in fact "public persons" rather than "private" ones, by virtue of a business-government partnership to promote economic development in the area.
When I presented my paper on post-Kelo reform at Northwestern Law School a few weeks ago, one of the participants in the workshop asked me why pro-condemnation interest groups had not sponsored their own post-Kelo referendum initiatives to counteract those proposed by property rights groups by giving the public the illusion of reform without the reality. I tried to explain why this was unlikely to happen. However, the CLC referendum proposal shows that, at least in California, the defenders of Kelo are craftier than I anticipated. Although I was wrong about this specific prediction, the CLC initiative does reinforce my general thesis that post-Kelo reform has been ineffective because political leaders can exploit voter ignorance by persuading the public that bogus reforms provide real protection to property owners. The CLC initiative would make no sense unless we assume that its advocates calculate that the public won't be able to tell the difference between genuine eminent domain reform and one that imposes no real constraints on takings.
Related Posts (on one page):
- More Deceptive Eminent Domain "Reform" in California:
- The California League of Cities' Deceptive Eminent Domain "Reform" Referendum Initiative:
Prop 90, which had both regulatory takings and physical takings reform, was defeated in the 2006 election 52% to 48%. There was some talk that the reformers were going to try again. Obviously, if the reformers are going to succeed the gap will be narrow.
The CLC's actions in essence prevents another Prop 90 because the CLC version would likely garner more votes. Thus in order to garner more votes than the CLC version, the property-rights advocates must strip regulatory takings from their version of the initiative. This will leave only physical takings reform, which probably should defeat the CLC's faux reform.
This is a no-lose proposition for CLC. At the worst, real physical takings reform but no regulatory takings reform passes. But if CLC gets lucky, it might even be able to defeat real physical takings reform and have only its faux reform pass.
This is a cynical, yet intelligent, strategy.
What is wrong with federalism? We in California should be able to have different laws than in Virginia. If Virginia residents, like Mr. Somin, prefer a different eminent domain regime, then so be it. But I don't see why he is so concerned with the laws that are passed here. Let us see whose economy is more successful and whose people are more happy.
Is there a California case or statute on point?
San Francisco voters passed Prop. H to mandate relocation assistance for non-fault eviction last year. Many anti-regulatory taking faction people had opposed it bitterly. I haven't researched Pacific Legal Foundation's position on that fight, but I can guess base on their prior positions.
I do welcome their sudden concern for the tenants now. I do think that tenants should be entitled to same rights under eminent domain as under an owner initiated condo conversion.
As a Californian, I voted against Prop. 90 because the proponents of it had mixed eminent domain protection with regulatory taking issues. If CLC's proposal can force other side to let each issue win or lose based on their own merit, I believe that's good.
The initiative process in California is rife with problems. You can pretty much be assured that no initiative on the ballot is the best way to address whatever's being addressed. The question is not whether or not an initiative is a Trojan horse, it's just a matter of to what degree. God forbid these issues actually get legislated by legislators, who can actually modify bills if they need to, rather than just the thumbs up/thumbs down that the initiative process allows.
Obviously, the CLC initiative is a Trojan Horse, but the campaign in its favor is likely to be well funded by cities, bond traders, selected developers etc. Its sponsors appear to be proceeding on the (was it Mencken's?) premise that no one ever went broke underestimating the intelligence of the American public.
The problem is that few people understand the subtleties that are involved, and no one seems to be paying attention to reform of the compensation aspects of eminent domain law. Providing genuine just compensation (i.e. the indemnity that the Supreme Court bloviates about but de facto denies) would go a long way toward policing profligate use of eminent domain. But as long as its proponents get to enjoy a free or semi-free lunch -- what the Wall Street Journal called a culture of kleptocracy -- you can count on fierce opposition to overdue reform of the moral, civic and economic cesspit that is the law of eminent domain. In the meantime, bonded indebtedness for redevelopment in California has gone up from $5 billion in 1985 to $61 billion in 2004. So ask yopurselves: qui bono?
Eminent domain is like cars: everybody thinks he is an expert on selecting one, but few people really know what's under the hood and how to maintain it. Result: misunderstanding and even counterproductive positions on the part of property defenders are common.
Still, this time, at long last the people are genuinely pisssed off, so there is hope.
Yes, exactly; you beat me to what I was going to say.
I'll just add that 90% of Prop 90's funding came from groups founded by a single real estate developer in New York (Howie Rich). A dishonest campaign, conducted by a guy who stood to make a whole boatload of money if it won...and you're accusing the CLC of deception and cynical self-interest?
What is wrong with federalism? We in California should be able to have different laws than in Virginia.
As a non-Californian, I don't claim the right to vote in California. But I have every right to criticize California laws or (as in this case) proposed laws. Californians have the exact same right to criticize Virginia laws. That too is democracy in action.