Institute for Justice Analysis of Prop 99 Part 1 of 2

By
Larry Gilbert
– June 1, 2008Posted in: Eminent Domain, Fresh Juice, Prop 98/99

Two years ago, as a member of the grass roots Castle Coalition wing of the Institute for Justice, I attended their 2006 National Castle Coalition Conference. In addition to meeting the attorney’s from the IJ at that weekend event I met close to 140 victims, and victors, engaged in this fight to protect private property rights across this nation. That list included Susette Kelo of New London, CT, Carl and Joy Gamble of Norwood, Ohio and numerous others where IJ represented them at state and the US Supreme Courts.
To me, that speaks of IJ having impeccable credentials on understanding the law as it relates to our property rights and the abuses of same that they fight to overturn all over the country.

For those unfamiliar with the IJ let me share some additional background.

“Founded in 1991, the Institute for Justice is what a civil liberties law firm should be. As our nation’s only libertarian public interest law firm, we engage in cutting-edge litigation and advocacy both in the courts of law and in the court of public opinion on behalf of individuals whose most basic rights are denied by the government–like the right to earn an honest living, private property rights, and the right to free speech, especially in the areas of commercial and Internet speech.”

The IJ is world famous for defending Susette and Michael Kelo in that infamous property rights case which they argued before the US Supreme Court.

“The Institute for Justice has become a major pillar of our free society. In area after area—economic liberty, school choice, private property rights—it has provided legal defense against assaults on human freedom. In the process, it has strengthened and deepened liberty.”

—Nobel Laureate Milton Friedman

With that background I would argue that their credentials and opinions on the issue of property rights are above reproach. Unlike questionable data posted by a fellow blogger, the IJ has no dog in the hunt with regard to their assessment of Propositions 98 and 99 which I now submit for your consideration. Part one, which follows, will be their legal opinion.

“Analysis of Proposition 99” dated April 16, 2008.

The League of Californian cites placed an initiative on the ballot to amend the state constitution for the purpose of protecting homes from eminent domain abuse. Proposition 99, the “Homeowners and Private Property Protection act” (“Prop 99”), as it is called, is both a response to the U. S. Supreme Court’s infamous decision in Kelo v. City of New London, and Proposition 90, a combination eminent domain and regulatory takings measure that was narrowly defeated in 2006. Unfortunately, Prop 99 allows a considerable amount of abuse to continue.

Despite its lofty language of intent, Prop 99 would only protect “owner occupied residence(s)” from being acquired by eminent domain and subsequently transferred to a private party for private development. While that is certainly necessary and worthwhile, as defined in Prop 99, “owner-occupied residence” specifically excludes all small business owners, all renters and even all new homeowners if they have lived in their residences for less than a year. Prop 99 would provide even less protection than would have been provided by ACA-8, a league-backed–and recently defeated–constitutional amendment considered by the Legislature. Over the years, the Institute for Justice has found over 1,000 instances of eminent domain abuse in California, many ofd which would not be stopped by Prop 99 because it seeks to prevent abuse against such a small proportion of the properties subject to abuse. Prop 99 will do little to prevent eminent domain abuse in California–and that flaw is fatal.

In addition, Prop 99 only applies to owner occupied residences when the government’s “purpose” is to convey property to another private party, so it is unclear if Prop 99 would protect any property. Government can always claim that its purpose is something else, For example, under the Prop 99 purpose test, a government could change the zoning of an area–from residential to commercial, for example–and then, with the alleged purpose of making the properties in the area meet the new zoning requirements, use eminent domain to transfer homes to private developers. Courts give great deference to a governments claim of purpose, so Prop 99 would be of little sue to homeowners whose cities are determined to take their properties.

Finally, Prop 99 contains a provision that would nullify any other attempts to amend Article I, Section 19 of the constitution–a clear attack on another ballot measure, which promises broad-reaching, non-discriminatory protection of homes, farms, businesses, and houses of worship form the abuse of eminent domain. Filed by a group consisting of the California Farm Bureau Federation, Howard Jarvis Taxpayers association and California Alliance to Protect Private Property Rights, Prop 98, the California Property Owners and Farmland Protection Act” (“Prop 98”), will appear on the same June 2008 ballot. In the event that both pass, Prop 99’s specific provision would wipe out Prop 98 in its entirety.

In the end, Prop 99 will provide insubstantial protection against the use of eminent domain for private commercial development. Small business owners will continue to not only lose their buildings, but also their incomes. All farmers and working class renters are at risk. Homeowners may not even be protected. California requires real, substantive reform for everyone and Prop 99 does not come close to providing it.

Part 2 will contain the Institute for Justice “Analysis of Prop 98”

Download the entire analysis here: Institute for Justice Analysis of Prop. 99.

Vote YES on Prop 98

Vote NO on Prop 99


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About Larry Gilbert