Part I

As we saw in Part I, the Kelo decision opened governmental entities to allow the use of the eminent domain process to be used to take property from one individual to give to another individual as long as the government could show that their actions were in the best interests of the public.

At issue was the definition of "public use" and "public purpose" as applied to governmental authority for taking private property belonging to one individual and conveying that property to another private individual.

The California initiative process: the good, bad and the ugly ...

The good:  California citizens are allowed to use California's initiative process to submit a petition signed by the required minimum number of registered voters to force a public vote on a proposed statute, constitutional amendment, charter amendment or ordinance,

The bad: There is no doubt that California's initiative process has been misused in the past both by politicians and by the special interests who are seeking to purchase a favorable outcome.

Misnamed and mischaracterized propositions, phony sponsor or support groups and tricky wording as well as coercion and corruption have all played their part in the initiative  process.

From misnamed propositions which falsely characterize the substance of the proposition to tricky wording where a "yes" vote means "no" have all be employed against the average unassuming citizens of California. And let us not forget the deceptive media campaigns which either falsely characterize the issue or present supporters (or opponents) that are little more than "fronts" for the unions, special interests and the politicians themselves. Consisting of little more than a fancy address in some attorney's office, these high-minded sounding committees, commissions, associations and coalitions are little more than names to be used to trick voters by well-funded public relations campaigns.

The California Teacher's Coalition for Improving Classroom Conditions for Our Children (if there is such a thing) may be nothing more than a "shell" front for a union media campaign attempting to secure further funding for education -- even though the money will, in all likelihood, never reach the children or the classroom. Possibly to be spent on continuing to build BILLION dollar high schools such as the one in Los Angeles which has never opened. Or to keep union teachers employed during a severe economic downturn.

The use of policemen, firemen, paramedics, nurses and teachers have all be used to endorse propositions which have nothing to do with public safety other than assuming that they may get an increased portion of the pie should additional taxes be imposed. The misuse of s0-called "authority" figures is a staple in initiative media campaigns.

The ugly: The thought that your public officials would misrepresent the issues for the benefit of themselves, the unions and/or the special interests over the wants and needs of legal, law-abiding, tax-paying citizens is one of the ugliest parts of politics. Unfortunately, the political elite and their supporters are beginning to care very little for the public, except at election time, and this is greatly contributing to the faster-and-faster decline of our American culture. 

Who can you believe?

If you cannot believe your elected officials and members of esteemed institutions and organizations, who can you believe. If the final analysis, you must rely on yourself. Studying the issue and then applying common sense. Not voting for a person, a party or a cause -- but because an issue is important and you can plainly see the difference between right and wrong, black and white -- in direct contravention to those who claim that everything is a "shade of gray." By supporting "it depends" logic, important liberties and freedoms are compromised and lost -- all for the expediency of supporting a political cadre of which you never will be an equal member.

Let's start with the "impartial California Legislative Analyst..."

Proposition Number and Title:

Proposition 98 -- "Government Acquisition, Regulation of Private Property. Constitutional Amendment."

Proposition 99 -- "Eminent Domain. Acquisition of Owner-Occupied Residence. Constitutional Amendment."

Summary:

Proposition 98 -- " This measure amends the State Constitution to (1) constrain state and local governments’ authority to take private property and (2) phase out rent control. The measure also might constrain government’s authority to implement certain other programs and laws, such as mandatory inclusionary housing programs and tenant relocation benefits. The measure’s provisions apply to all governmental agencies."

Proposition 99 -- "This constitutional amendment limits state and local government’s use of eminent domain in certain circumstances. Specifically, the measure prohibits government from using eminent domain to take a single-family home (including a condominium) for the purpose of transferring it to another private party (such as a person, business, or association). This prohibition, however, would not apply if government was taking the home under certain specified circumstances."

Without reading much more than the above summaries, we see the hot button issue of "phase out rent control" and the weasel words of "certain circumstances" being used. From this quick analysis, you can probably see that the conservatives and strict constructionists will be backing Proposition 98 and the liberals and activists will be backing proposition 99.

For example, the issue of Rent Control in Santa Monica, California has dominated local politics for years. Especially in the face of gentrification and the existence of an aging population which would probably be forced out of their rentals years ago by rising prices. Over the years, many of the liberal and more controversial members of the Santa Monica City Council owed their political careers to the establishment and maintenance of rent control. 

Why we consider "certain specified circumstances" to be in the weasel word category is simply due to the fact that one these initiatives are codified into law, the legislature can quickly and easily modify which specified circumstances are covered without resorting to another public vote or "referendum" on the subject.

Unfortunately, may laws are also passed with "emergency" provisions merely to circumvent further public input on the issues.

A closer look at the Analyst's background information on Proposition 98...

Government Actions to Take Property—'Eminent Domain'

"Every year, California state and local governments buy hundreds of millions of dollars of property from private owners. Government uses most of this property for purposes such as roads, schools, and public utilities. In other cases, government buys property for different purposes, such as to transfer it to (1) private owners to develop new businesses or (2) nonprofit organizations to provide affordable housing."

"Most of the time, government buys property from willing sellers. Sometimes, however, property owners do not want to sell their property or do not agree on a sales price. In these cases, California law allows government to take property from a private owner provided that government:

• Uses the property for a 'public use' (a term that has been broadly interpreted to mean a variety of public purposes).
• Pays the property owner 'just compensation' (generally, the property’s fair market value) and relocation costs (including some business losses)."

"This government power to take property for a public use is called 'eminent domain.'

"Eminent Domain Challenges. Property owners are not required to accept the amount of compensation government offers. Instead, they may make a counteroffer or challenge the amount in court. Under the State Constitution, property owners are entitled to have the amount of compensation determined by a jury. While property owners also may challenge government’s right to take a property, these challenges are more difficult. In part, this is because courts give significant weight to government’s findings and perspectives when ruling on disputes as to whether an eminent domain action is for public use."

Notice the difference between the terms "public use" which is defined in the Constitution and "public purpose" which represents a court interpretation of the Constitution.

Programs to Promote Affordable Housing

"Rent Control. Over a dozen California cities have some form of rent control law. These cities include Los Angeles, San Francisco, Oakland, Berkeley, Santa Monica, and San Jose. In addition, about 100 cities and counties have laws limiting the rent mobile home park owners may charge people who lease space in their park. Altogether, about one million California households live in rent-controlled apartments or mobile home parks. While the provisions of these rent control laws vary, they typically restrict the amount of money by which a landlord (or park owner) may increase a tenant’s rent each year. If a tenant moves out of a housing unit or mobile home park, property owners may reset rents to market rates. Once the unit or space is rented again, however, rent control laws restrict the rate of future rent increases."

Question: does this keep the owner or landlord from upgrading his property and/or compromise the amount of financing for which they may qualify due to artificial restraints imposed by the state?

"Other Housing Programs and Laws. About one-third of California cities and counties have laws referred to as “inclusionary housing.” These laws (which can be mandatory or voluntary in nature) have the goal of providing lower-cost housing units in new developments. Mandatory inclusionary laws require developers to construct affordable housing on part of their land or contribute funds to develop such housing. Voluntary laws offer developers incentives to provide affordable housing. (For example, a city might permit a developer to build an increased number of housing units if some of them are affordable to lower-income households.) In addition, many California cities have ordinances requiring apartment owners to provide relocation benefits to tenants if they convert their property into condominiums."

Question: Do mandatory inclusionary laws amount to legalized extortion for political gain rather than a true "public" use?

By way of example, a good friend in Malibu, California was told that he needed to purchase an equivalent amount of land and donate it to the California Conservancy if he wanted to expand the square footage of his home. A somewhat unreasonable demand as his house was built on a hill where the actual footage was located in between the main portion of the raised house and the area touching the ground. The footprint of the house remained exactly the same, only the livable square footage was involved. The issue was rendered moot when a sharp attorney told him to use a certain topological map with different gradations. The variance between the two maps was enough to allow him to use the already enclosed space. While the cost of an attorney was significant, it was much cheaper than buying additional land and deeding it "voluntarily" to the Conservancy.

A closer look at the Analyst's background  information on Proposition 99...

"California state and local governments frequently acquire private property to build public facilities (such as roads, parks, and schools) or to promote public objectives (such as economic development and affordable housing)."

Again,  consider the difference between the terms "public use" which is defined in the Constitution and "public purpose" which represents a court interpretation of the Constitution. Here we see exactly what proposition 98 is against: confusing public use and public purpose. "Prop. 99 appears to allow the concept of public use to include vague concepts as the promotion of economic development and affordable housing.

"Most of the time, government buys property from willing sellers. Sometimes, however, property owners do not want to sell their property or do not agree on a sales price. In these cases, California law allows government to take property from a private owner provided that government:

• Uses the property for a “public use” (a term that has been broadly interpreted to mean a variety of public purposes).
• Pays the property owner “just compensation” (generally, the property’s fair market value) and relocation costs (including certain business losses)."

Notice that there is no mention of "rent control" and that the subject of voluntary or mandatory inclusionary laws are built into the framework.

So it seems that we have two very different approaches to protecting private property in California. One, Proposition 98, restricts the "taking" of private property to the Constitutional "public use" standard and phases out rent control and inclusionary laws while the other, Proposition 99, expands the meaning of "public use" to include "public purpose" and specifically includes the use of inclusionary rules as well as other as yet undefined factors.

Next:  California Props 98 & 99: SAVING YOUR PROPERTY FROM CORRUPT DEVELOPERS AND THEIR POLITICIANS - PART III - Partisan Politics Playing to the Crowd

What can YOU do?

Examine both Propositions with an open mind and use your common sense to determine whether or not you want to keep the original Constitutional test of "public use" or you want to expand the test of "public use" to include "public purpose."

Should you opt for the ill-defined public purpose, it will ratify the "Kelo" decision and allow for greater governmental corruption and collusion between politicians and developers.

Decide, in advance, if you are going to be swayed by logic or the emotion of seeing the spectre of "older people" being forced from their homes -- even though Proposition 98 contains provisions to prevent that from happening.

-- steve

Quote of the Day: "Property is surely a right of mankind as real as liberty.” -- John Adams

A reminder from OneCitizenSpeaking.com: a large improvement can result from a small change…

The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane. -- Marcus Aurelius