California’s Eminent Domain Proposition 98 Loses — Snatching Defeat From the Jaws of Victory

In yesterday’s elections, California voted on two competing propositions seeking to amend the state Constitution with regard to its eminent domain provisions. The vote is now in and the results are unequivocal. Proposition 98 went down, and Proposition 99 passed. At first blush this seems passing strange, given the widespread, strongly negative  public reaction to the Kelo decision and to its notion that people can be just kicked out of their unoffending homes to make room for wealtheir individuals who are thought likely to pay more taxes. So what happened?

Much could be said about the virtues and vices of both these propositions, but having recently done that in our post of May 28, 2008,  entitled California Proposition 99 Is as Phony as a Three-Dollar Bill, we see no need for doing it again. Instead we note and deplore the foolishness of Proposition 98 sponsors who evidently thought that they could phase out rent control in California under the banner of  eminent domain reform.  Also, for reasons that we don’t understand, they saw fit to insert into Proposition 98 language forbidding the condemnation of property for consumption of natural resources — whatever that means. It was that part of Proposition 98 that led California Governor Arnold Schwartzenegger to conclude that if passed, Proposition 98 would hamper condemnation of water resources, and so he came out against it.

So what possessed the sponsors of Proposition 98 to do these things? As far as that “consumption of natural resources” shtick goes, only God knows because we doubt very much that they do themselves. We certainly don’t. And as for rent control . . .For once words fail us.

Rent control was a separate major, controversial subject that had nothing to do with eminent domain (unless you believe that all rent control is a taking — a proposition uniformly rejected by the courts).  The insertion of the rent control business into Proposition 98 was an invitation to the California courts to invalidate the whole shebang, had it passed, because it thus dealt with two subjects, whereas the state Constitution permits constitutional amendments by initiative only one subject at a time. Moreover, taking on rent control without a preceding public debate and without an evolution of an organized constituency  opposing it, was utter folly. It enabled the opponents of Proposition 98 to ignore its eminent domain reform provisions and to rise in defense of rent control. For example, on June 2, 2008, the day before the election, opponents of Proposition 98 ran full page ads in the Los Angeles Times, that spoke only to the rent control issue.

We don’t pretend to be expert on political campaigns and on the extent to which propositions can be sneaked into the law past inattentive voters, but you don’t have to be a rocket scientist to understand what happened here. This was a classic case of well-meaning people messing around with a subject they simply didn’t understand. Not only that, but as far as we have been able to determine by contacting skilled condemnation lawyers all over the state, Proposition 98 sponsors did not consult any of tem either.

So is there a moral to it all? We sure hope so. And if you figure out what it is, please let us know.

A more detailed analysis of this election may be found in Patrick McGreevy, Voters Reject Proposition to Phase Out Rent Control, L. A. Times, Jun.4, 2008, at p. A1. McGreevy is an experienced reporter who has reported on the subject of urban redevelopment extensively.

Update. The Los Angeles Times reports that the final figures on Propositions 98 and 99 were:

     Prop 98    No 61%, Yes 39%

     Prop 99   Yes 62.5%, No 37.5%

The voter turnout was an abysmal 22.2% although so far uncounted absentee ballots may raise it to 27% — still a record low.

For the full story see Patrick McGreevy, Prop. 98 Backers Seek Eminent Domain Limits, Los Angeles Times, Jun. 6, 2008, at p. B1.

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