[Insert Only Quote Anyone Knows From Godfather III Here]

If I might be permitted to kibitz briefly on California elections? I cannot recommend highly enough a vote of No on Proposition 90. And not just because I recommend a vote of No on all propositions as a matter of general principle.

Prop 90 is one of several measures on state ballots across the country reacting to the Supreme Court decision of Kelo v. New London, Connecticut. Kelo is complicated, but basically says that the Federal courts will afford state and local governments great leeway in determining what a public purpose is for eminent domain takings. Eminent domain lets the government seize private property for public use, provided they compensate the original owners. Eminent domain has a long, boring history in the United States that I won't get into. The point is that generally to be a taking the government has to literally take your property away from you, it has to use it for the public good, and it has to provide you with compensation.

Kelo held that government should be given broad leeway in determining what the public good is. In that case, they seized a bunch of houses to turn over to, God, I forget, some big damn chemical company I think. Whatever. Anyhow, they were taking people's land and giving it, in part, to a corporation. The case was more complex than that and the city's action was a lot more reasonable than the one-sentence summary makes it seem, but the rule that came out of Kelo was that the Federal courts won't throw out a taking unless it's egregiously not for public use.

People got mad about this, understandably. The thing about federal eminent domain law, though, is that it's a floor, not a ceiling. You can't have fewer rights vis-a-vis your state government than the Federal courts give you, but you can get more rights. Thus: State constitutional amendments and laws to tighten the eminent domain standards.

Prop. 90 addresses some concerns of Kelo, providing a strict definition of Public Use that requires the government give a specific, articulated statement of what public use the property will be used for. It gives the property owner a cause of action in courts, allowing them to take it to a judge to determine if a use is, indeed, a public use. It also gives property owners the ability to go to a judge to determine what Just Compensation is, and guarantees the highest reasonable value when determining compensation. And it requires government to sell off property when it's no longer being used for its articulated public use, and to give the prior private owner the right of first refusal in that sale.

All well and good. You might disagree with some parts of that (I do), but it's nothing to get too exercised over. Then we come to the sneaky bit in the definitions section of the law. The proposition would amend Article I, Section 19 of the California Constitution to add, among other things, Subsection B, Clause 8, which would read:

(8) Except when taken to protect public health and safety, “damage” to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the downzoning of private property, the elimination of any access to private property, and limitations on the use of private air space. “Government action” shall mean any statute, charter provision, ordinance, resolution, law, rule or regulation.

Prop. 90 doesn't just change the meanings of Public Use and Just Compensation; it dicks around with what constitutes a Taking. This makes it so that state and government regulations that could adversely affect the value of a piece of property are now accounted as takings, appropriations by the government for which you must be compensated. Most directly, this means essentially any zoning laws would become takings. Right now the very house you sit in could be used as a widget factory, were it not for meddling government zoning laws. Why, the fact that you can't turn your house into a widget factory in the middle of your quiet residential neighborhood is just as though the government ripped those potential future widget-related dollars straight out of your wallet!

And those are just the easy cases. It's not at all hard to read this law as requiring that any government rule or regulation, anywhere that affects anybodies profitability be judged a taking that requires compensation. Minimum wage laws? Taking from rightful business owners. Clean air laws? Taking from lawful car owners and plant operators.

And the trick is that the bill isn't compensating you from the actual losses you suffer from regulation; it's compensating you for your expected future economic losses. So it's not "I have to re-tool my plant to comply with environmental regulations, and that will cost money," it's "Complying with environmental regulations will result in my plant being less profitable than it would be otherwise, and I should be compensated to the level of profits I would be making if the law weren't in place at all."

There are a lot of ways to fix Kelo, but Prop. 90 is a notably bad one. It's using the anti-Kelo movement as a cover for sneaking in anti-regulatory measures that would probably be more harmful to California's treasury than Prop. 13's property tax limitations.

In other news, I can't get Beethoven's 7th Symphony out of my head, which is not entirely unpleasant. Also: Did you know that the fourth movement of Beethoven's 2nd Symphony was written as a musical simulation of Beethoven's gastric distress? Now you do!

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This page contains a single entry by Zach published on November 7, 2006 10:44 AM.

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