A while back we wrote a post (It’s That Time Again – Yuck!, Feb. 11, 2008) addressing the ongoing California mess that has taken the form of two competing propositions that are on the ballot in the upcoming election — Propositions 98 and 99, both purporting to amend the state Constitution to restrict the use of eminent domain. The problem is that only one — Proposition 98 — does that. The other one — Proposition 99 — is a red herring, designed to confuse the voters and to keep them from voting YES on Proposition 98 that provides real reform to this field of law. How can we say that with such assurance? Easy. Proposition 99 pretty much ‘fesses up that it changes nothing. You don’t believe us? Then get this. Section 3 of Proposition 99 unblushingly states:
“By enacting this measure, the voters do not intend to change the meaning of of the terms in subdivision (a) of Section 19, Article I of the California Constitution, including without limitation, ‘taken,’ ‘damaged,’ ‘public use,’ and ‘just compensation,’ and deliberately do not impose any restrictions of the exercise of power pursuant to Section 19, Article I, other than as expressly provided in this measure.”
And what, pray tell, is expressly provided in this measure that is new? We’re glad you asked. The new stuff is a purported “prohibition” on takings of owner-occupied, detached, single family homes occupied by their owners for at least one year, for the purpose of conveying them to other private persons. But the problem with this weasel-wording is that under present law, no property may be taken “for the purpose of conveying it to a private person.” The purpose must be public. Taking for a private purpose, as the U.S. Supreme Court admonished even in the notorious Kelo case, would be constitutionally impermissible. The problem with the present law is that condemnors always offer some professed “public” purpose, like elimination of blight, or redistribution of titles, or improving the condition of the community, etc., so that any conveyance of the taken property to a private person or entity miraculously becomes not “the purpose” of the taking, but merely something “incidental” to the public purpose. See County of Los Angeles v. Anthony (1964) 224 Cal.App.2d 103 (benefit to private, proft-making promoters of a motion picture museum that was never built, deemed to be “incidental” in a case of taking of a single-family home for their proposed museum site).
And remember, the condemnor’s professed plans are not subject to judicial review, so the condemnors can promise anything but can later devote the taken property to other uses, or just sell it or give it to another private party. Recall that Chavez Ravine was originally taken by the City of Los Angeles for public housing, but was later given to the Dodgers to induce them to move from Brooklyn to Los Angeles. See Thomas S. Hines, Field of Dreams; History: The Battle of Chavez Ravine, L.A. Times, Apr. 20, 1997, at M1. For additional instances of such municipal shenanigans see Gideon Kanner, We Don’t Have to Follow Any Stinkin’ Planning — Sorry About that Justice Stevens, 39 Urban Lawyer 529, 545-49 (2007).
Moreover, Proposition 99 contains an “exception” that swallows the rule: by its terms it doesn’t apply at all when the taking and reconveyance to a private party is for the purpose of protecting public health and safety, preventing criminal activity, responding to [an unspecified] emergency, or remedying environmental contamination — all public purposes for which takings are allowable under existing law. So what does Proposition 99 change? Nothing, Nada. Zip. By its terms it would apply only to attempted takings that are already prohibited by the Public Use Clause of the Fifth Amendment – i.e., naked takings of property of A for the purpose of transfering it to B.
So ask yourself: why go to the trouble of collecting signatures and getting a constitutional amendment on the ballot, if it changes nothing — or even if you accept the proponents’ take on the matter, next to nothing? Good question. The short answer is that Proposition 99 is as phony as the proverbial three-dollar bill. Its transparent purpose (at least transparent to anyone with even rudimentary knowledge of eminent domain law) is to confuse the voters and divert their attention from the competing Proposition 98 which does make substantive changes in eminent domain law. Proposition 98 prohibits (a) the transfer of taken property to any person or entity other than a public agency or a regulated utility, (b) it prohibits takings for the consumption of natural resources or for substantially the same use as that of the current owner, and (c) contrary to false commercials of Proposition 99 proponents, it does not abolish rent control, but only phases it out.
In addition Proposition 98 requires reimbursement of condemnees’ litigation expenses when they recover greater compensation than offered by the condemnor, and it requires reimbursement of displaced businesses for temporary losses and for relocation expenses. Moreover, Proposition 98 makes municipal decisions to condemn subject to judicial review without deference to the findings of the condemnor. Finally, if the taken property is not devoted to the purported public use for which it was taken, the condemnor must offer to reconvey it to the persons from which it was taken, or their heirs.
All these reforms are no more than rectification of historical injustices that have been plaguing the field of eminent domain, that have been the subject of much criticism from legal commentators, and that are ripe for reform.
Bottom line: you may like or dislike Proposition 98, but it’s straightforward reform of the harsh law of eminent domain that has historically winked at takings of private property for non-public purposes, to enrich municipally favored redevelopers, and adding insult to injury, has provided only partial compensation that until this day falls short of providing recompense to condemnees for all their demonstrable economic losses. The U.S. Supreme Court once characterized eminent domain as an exercise in political ethics – and so it should be.
A vote for Proposition 98 will provide support for the Fifth Amendment and the Eighth Commandment – not a bad combination.