“Gideons Trumpet” Prop 98 “Snatching defeat from the jaws of victory”

I just received the following assessment of yesterday’s Prop 98/Prop 99 outcome from Law Professor Gideon Kanner, an attorney/colleague who, in 2001, defeated the Lancaster Redevelopment Agency. Gideon represented the “99 Cents Only Stores” located adjacent to Costco in  Lancaster,CA where the US District Court Granted Plaintiff’s Motion for Summary Judgment .
“Gideon’s Trumpet

A forum for discussion of takings of property by eminent domain and inverse condemnation

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

June 4th, 2008 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 its notion that people could be just kicked out of their unoffending homes to make room for wealtheir individuals who were 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 Schwarzenegger 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 them 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.

An 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.”

Juice readers. I promise to forward your comments to Gideon.



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