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Primary Election, Tuesday, 3 June 2008

Each election I research and analyze the propositions on the California ballot to create this voting guide, and they represent nothing other than my own personal view of these measures. I do this analysis on a non-partisan basis, but that doesn't mean I have no opinion. I do, but I believe it's transparent (note that "transparency" means only that I claim no hidden agenda, not that I'm trying to be unbiased).

I generally have no connection with any group supporting or opposing any of these propositions.

My main intent is to get to the bottom of these issues, knowing that the "real" purpose is not always evident. Once uncovered, I apply a mainly libertarian eye to them.

I'm more interested in examining the issues thoughtfully than I am in getting you to vote the way I do, so I hope these pages help you understand the issues in front of us.

Educated votes are better votes.

I hope my thoughts are helpful.

Other resources:

Summary of positions

Click each link for the rationale for each position.

Proposition Result My Position Description / Title
California icon Prop 98 Yes Eminent Domain; Rent Control
California icon Prop 99 No Eminent Domain

California icon Prop 98: Eminent Domain; Rent Control
California icon Prop 99: Eminent Domain

These two measures are competing head to head, so they'll be addressed together. Both claim to be about eminent domain reform, but each has its own deviations from the claim.

The 5th Amendment to the United States Constitution says, in part:

... nor shall private property be taken for public use, without just compensation.

Even a Constitution with strong protections against government encroachment understands that sometimes it's necessary for the public good to trump private property. Some public works were seen as too important to allow them to be blocked by one or a few unwilling sellers, so the government could force a sale.

Back in the 1700s, this was probably for things like roads or Army forts, and today it might be for a dam or a school. There is a wide variety of public uses that almost everybody agrees is a "public use", and even vehement lovers of freedom (and private property) consider this a necessary evil.

But local governments have been shameless in their taking private property for use that can hardly be called a public use, and (in particular) transfers to private developers for building a mall or a Costco are increasingly common. The justification is that these projects benefit the public generally (perhaps by increased tax revenues), and the Supreme Court in their Kelo decision seems to agree.

There has been widespread outrage over Kelo, spawning movements all over the nation to limit the use of eminent domain. This includes the failed Prop 90 measure in the fall of 2006.

These measures before us now aim to limit eminent domain as well, though in very different ways. The short summary is that Prop 98 has very, very strong protections against many kinds of eminent domain takings, plus a phase out of rent control. Prop 99 has limited prohibitions against taking of private residences only. Let's dig in.

Prop 98's actual text is a straightforward read without much of the legalistic language found in other measures: this means that ordinary people can read it and have a clear understanding of what it's going to do. It's also written in a way that will make it more difficult for local governments to game the rules.

The clause "Private property may not be taken or damaged for private use" contains the magic words "or damaged": this is a lightning rod for opponents, but it's necessary to forestall shenanigans by abusive local governments.

If a City wants a piece of property but cannot take it outright, they can concoct zoning rules or other abuses that render the property unusable for its current purpose. This destroys the property value and ultimately prompts a sale. Then *poof* - rezoning for the Costco or whatever.

Opponents state that this will prevent efforts at legitimate governance: environmental laws are commonly cited. But lovers of freedom know that laws forbidding pollution are not damaging a property but protecting the property rights of others who have to consume the pollution.

If a property owner is an unwilling seller, the government must release the payment to the owner promptly, and this does not prejudice the owner from continuing a protest. In the past, acceptance of the funds constituted acceptance of the terms, so a city could just starve out an unwilling seller, bleeding them dry on legal fees. No more.

If property is taken for a purpose but turns out not to be used for that purpose, the original owner is given a right of first refusal on the property, at the original sale price. This means that the City can't take the property for a school but then decide that the Costco would be best after all.

Property cannot taken for public use if the property would be put to substantially the same use as by the private owner.

The language is just refreshingly clear: this attempts to make it hard for the government to take property from private owners, as it should be. Legitimate public use (building a school or a road) will still be possible.

But tucked away in the "Effective Date" section — which is usually boilerplate language in every other ballot measure — is what the fuss is all about: an effective phaseout of rent control.

Even one who favors every part of this measure (as I do) finds this out of place, as if the authors were hoping that nobody would notice such a key provision was hidden in pro-forma language. The whole approach strikes me as sneaky, and I can see why so many are offended by it.

The only rent control abolished outright are new measured introduced in 2007 or 2008; units covered prior to that remain controlled until the units vacate.

Prop 99 is a far weaker measure that's obviously a response by the local governments who want to keep their ability to take what they want. It protects only owner-occupied homes from being transfered to another private party: no protections for businesses, farms, or houses occupied by renters.

But most accounts (including that of the Legislative Analyst), this measure will have very little effect on the ability of a local government to take what they want: most of the brazen shenanigans would still be allowed.


I am strongly for Prop 98 and believe that Prop 99 is pointless.

I'll note up front that I am a lifelong renter and have never owned property - my protection against an abusive landlord is my right to find a better deal; she should not be insulated from the market any more than a renter should.

Though many undoubtedly believe that the rent-control provisions have nothing to do with eminent domain reform, they fit in quite nicely as a limitation on regulatory takings.

I don't know for sure who's really behind this — I don't believe that it's really the work of the Howard Jarvis Taxpayer folks — but my gut feeling is that it is funded by landlords who used the popular eminent domain reform movement to sneak in a phaseout of rent control.

Prop 99 was obviously driven by the local governments, with developers not far behind, to keep the status quo. None of these folks have respect for private property unless it's their own. I have nothing good to say about those who claim that Prop 99 is "real eminent domain reform".

One amusing note about the political ads is that this is a battle against the "wealthy":

Prop 98
"Backed by the wealthy landlords"
Prop 99
"Backed by the wealthy developers"

So there seems no clear way not to somehow help the big guy, unless perhaps voting against both.

In the end, I believe that private property is the guarantor of all other rights, so I can support Prop 98 - all the parts - with enthusiasm.

My vote: Yes on 98     No on 99

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Last updated: Mon Jun 2 10:19:40 PDT 2008