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Thursday, June 05, 2008

Eminent Domain Reform Takes an Interesting Turn in California

Tuesday's voting was not all about Obama.  California voters were also considering an anti-Kelo proposition (Prop. 98).  A similar measure that property-rights advocates proposed in 2006 failed, probably in part because they tried to bundle it with a Measure 37-style takings provision.  This time around, they tried to bundle it with an anti-rent control provision.  They lost again, by an even larger margin.   The California voting is interesting for two reasons.  First, as always, property-rights activists hail their victories as reflecting deep popular resentment of government intrusion on private property rights and explain their defeats as reflecting voter confusion (in all fairness, their opponents do pretty much the same thing).   According to the California Planning and Development Report, Jon Coupal, president of the Jarvis organization, blamed Proposition 98’s loss on the “confusion” created by Proposition 99, and on “public agencies using taxpayer dollars for campaign purposes.”

Coupal's comment points towards the second (and real) reason the California voting is interesting.  Even while they rejected Proposition 98, the voters approved (by a wide margin) Prop. 99, another anti-Kelo proposition, but one that had the backing of the League of California Cities and the California Redevelopment Association.  (More on Prop. 99 in the extended post.)

Prop. 99 would bar governments from taking owner-occupied homes through eminent domain for redevelopment, but permit the taking of other sorts of property (or the taking of owner-occupied homes for other purposes).  Prop. 99's focus on residential property makes it (to my knowledge) unique unusual (see update below) among anti-Kelo legislation and also dovetails with a suggestion I made in an essay I wrote on Kelo a few years ago.  Insofar as the backlash against Kelo was rooted in the popular views about the special status of residential property, I argued, it seemed strange to me that the proposed legislative responses  have tended to sweep much more broadly, encompassing all privately owned land.  It has always seemed to me that property rights groups were trading on the rhetorical and cultural power of homeownership in the service of a much more expansive agenda than the public reaction to Kelo merited on its own terms. 

You can see this manipulation of Kelo not only in the attempt to protect all private land from redevelopment takings, but also in the tendency of property-rights groups to bundle anti-Kelo initiatives with other elements of the property rights agenda,  such as the anti-rent control provision of Prop. 98.  Of course, to the property rights libertarian, all of these things (Kelo, rent control, regulatory takings, etc.) are related to broader principles about the nature and scope of private property rights, but most voters do not accept those underlying libertarian principles -- their reaction to Kelo rested on grounds that were much narrower, grounds having to do with the special status of the home.   I suppose in politics there's nothing wrong about running with a backlash for all it's worth, but it has always seemed to me that there was room for more targeted legislative responses to Kelo.

Not that I think Prop. 99 is perfect.  I would  argue, for example, that the same special protection it extends to owner-occupied dwellings ought to apply to long-term renters as well, and even to certain categories of commercial property.  But Prop. 99's willingness to make distinctions among categories of property is, to my mind, a useful precedent.  Not all private property is created equal.  A person's home may  be her castle, but a piece of land owned by a multi-national mining concern should not enjoy the same lofty status.  It makes a lot of sense for the law to reflect this hierarchy of values.

UPDATE:  Ilya Somin weighs in over at VC.  Ilya helpfully points out in our exchange in the comments that the Wisconsin post-Kelo statute singles out residential property for protection from certain sorts of eminent domain. 

Posted by Eduardo Penalver on June 5, 2008 at 10:14 AM | Permalink


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» Penalver on Prop98/99: from The Volokh Conspiracy
Over at Prawfs, Eduardo Penalver has an interesting post on California's recent Propositions 98 and 99. An excerpt:Insofar as the backlash agains... [Read More]

Tracked on Jun 5, 2008 1:14:48 PM

» Eduardo Penalver on California Proposition 99 and the Kelo Backlash: from The Volokh Conspiracy
In this interesting post on Prawfsblawg, prominent property scholar Eduardo Penalver argues that California Proposition 99 institutes a useful dis... [Read More]

Tracked on Jun 5, 2008 2:39:43 PM


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