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the initiative (which can be read here) explicitly states that, if enacted, the CLC initiative should be interpreted to superseded any other eminent domain reform initiative enacted at the same time if the two conflict, so long as the CLC proposal gets a higher number of votes than its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.