Tuesday, February 26, 2008

Going To Extremes (Or Why California Prop 98 is a bad idea)

Call me crazy, but I kind of hate California's system of placing so many issues up for a referundum. Don't we pay legislators to act on our behalf? A very conservative friend of mine made the comment that this direct democracy practice is something that was never really intended by the Founding Fathers. Some may debate this, but I seem to agree with it. Consider the fact that they installed the Electoral College as the means by which the President is actually elected.

In any event, there are two ballot initiatives which will be decided by California voters this summer. They are Propositions 98 and 99. Both are addressing the impact of the U.S. Supreme Court's Kelo ruling. In Kelo v. City of New London, the U.S. Supreme Court arrived at the conclusion that the right of eminent domain can be used by states, or municipalities, could use the right of eminent domain so long as the use could be deemed for "public use". The reason that Kelo arouses so many problems is that in the Kelo case, the City of New London used the right of eminent domain to take private property and transfer the property to another private entity. The Supreme Court found that the City was not simply redistributing private property for the benefit of a private entity. Instead, the City was using the right in order to achieve a public good through its redevelopment plan which the City showed was necessary in order to revitalize (i.e. gentrify) parts of the city which had fallen on hard times.

Now, the court reached this reading through extensions of other cases, but many groups, especially conservative groups have been infuriated by this decision. (For my part, I think that the Court decision went too far and allowed for the powers of eminent domain to be expanded further than I think is consistent with the Constitution and its traditional uses.)

In response to this, Proposition 98 was created by a group called Californians for Property Rights Protection.

  1. Bar state and local governments from condemning or damaging private property for private uses;
  2. Prohibit rent control and similar measures;
  3. Prohibit deference to government in property rights cases;
  4. Define “just compensation;”
  5. Require an award of attorneys fees and costs if a property owner obtains a judgment for more than the amount offered by the government; and
  6. Require government to offer to original owner of condemned property the right to repurchase property at condemned price when property is put to substantially different use than was publicly stated

This group has, in my opinion, gone to the opposite extreme of the Kelo ruling. Instead of simply limiting state and local governments from using eminent domain to obtain private property for private uses, they have gone on to tack on extra measures which make it harder for the government to use the right where it clearly could be used and prevents localities from regulating the rental market. A review of the language have also suggested that Prop 98 could have a detrimental impact on environmental planning and water resources. The legislative analysis, while not definitely coming down against it, warns that because of the language in the proposition, it could have unforseen consequences to other government programs.

If you have been reading this blog at all, you may note that I am a tenant's side attorney. Although I see the arguments against rent control, the benefits that are promised do not seem to be born out. Rent control in San Francisco came out to deal with a problem: ensuring that there is affordable housing in San Francisco. In those buildings where rent control does not apply, I see landlord's regularly taking advantage of their position to raise the rents as much as possible. I am not trying to deprive anyone of their property right, but at the same time, there needs to be a limit on how much rents can be changed simply because of the imbalance in power between a landlord and a tenant. Furthermore, for those who take the position that rent control makes it impossible get rid of "bad tenants", I think that they are not looking at the rent control laws carefully enough. If the tenant is not paying the rent, then by all means evict them. If they are causing a nuisance, there is the unlawful detainer scheme (which a California landlord is required to use even when there is no rent control). The benefits, in my opinion, of Rent Control is that it levels the playing field, forcing landlords to be upfront about what they are trying to do. Furthermore, if you follows the rules in the Rent Ordinance, then it lays out exactly what needs to be done and what will give rise to doing it.

Is rent control right for every area? Probably not. Is it appropriate for San Francisco and the other areas which have adopted it, probably yes. To me, in this regard, is that the local municipality adopted it is telling. The people who lived in that area approved it instead of having of the State government forcing a one size fits all solution for something that really is a local problem.

Now, there is the competing ballot measure, Proposition 99. Proposition 99, backed by a group called Eminent Domain Reform, suffers from not going far enough. Instead of protecting small businesses, family farms, and homeowners, it only seems to protect the single-family homeowners. On the flip side, it would allow Eminent Domain to be used for things such as conservation activities and allow localities to determine what works best for them as far as utliziing their police powers.

In my opinion, the correct ballot initiate would deal solely with the power of eminent domain. It would cover all property, regardless of size, and mandate that the use of eminent domain could not include transferring private property from one entity to another private entity. Eminent Domain is meant to allow the government to use an extraordinary power to for public use. To me, it seems counter-intuitive to say that public use can include a private entity's gain, simply because the economy may improve.

Basically, Prop 98 goes to far. It potentially prevents state and local governments from using the right to eminent domain for the public good because of tilting the scales too far in favor of individual property rights. Please vote no on it.

Prop 99, on other hand, does not go far enough to protect property rights. Please vote no on it.

There needs to be some reforms of the eminent domain system here in California. Neither of the options that the interest groups have provided us is worthy of this state. Maybe then the Legislature will stop passing the buck and start doing what they are supposed to be doing.


Anonymous said...


The Initiative process is a good thing.

Don't be dramatic. There are only two ballot measures and one was put on by our paid legislatures.

The two party system and the fact that few people actually pay attention to what our reps do (which would require looking into the laws they write... so you can't get away without reading and thinking) means we don't have a very responsive and responsible government. In the last generation the State has made huge mistakes with the budget and they continue to have a pension tsunami coming. Have you recalled your representatives yet?

Prop 59, Prop 215, and Prop 13 are loved by California but our elected politicians wouldn't have give these protections to us. We need the props.

Anonymous said...

It potentially prevents state and local governments from using the right to eminent domain for the public good because of tilting the scales too far in favor of individual property rights.

It only outlaws transfer from one private individual to an other. That can always be done the American way. With a purchase.

Prop 98 DOES NOT OUTLAW E.D. for a STATED public use.

Prop 98 does end NEW rent control.That is the only legitimate reason to vote against this, but only if you are against rent control more than E.D. Abuse.

AngryBell said...

My response to both of these comments is found in my posting of May 10, 2008 (http://wanderingbell.blogspot.com/2008/05/some-misconceptions-about-prop-98.html).