Capitol Games


by Timothy Sandefur

Yesterday I was invited to testify to a joint committee of the California legislature, which was holding an informational hearing about Proposition 90. Or so it was called. In fact, the committee was an extraordinarily biased event at which six opponents of Prop. 90 were invited to speak, and one proponent. Two neutrals (myself and Leonard Gilroy of the Reason Public Policy Institute) were also invited. The committee did not invite any victims of eminent domain abuse at all to speak.

The event began with a presentation by a law professor from U.C. Berkeley, about the history of eminent domain and regulatory takings law. This professor—whose name escapes me now—began with the patently untrue claim that regulatory takings was created entirely by the thinking of Oliver Wendell Holmes in the 1922 case of Pennsylvania Coal v. Mahon. This common trope has been demolished time and time again, but the committee had taken care not to have anyone there to explain that regulatory takings theory had been showing up in Supreme Court decisions for at least half a century before Mahon was decided, and that in fact Mahon was a regression from clear understanding of the issues involved.

The Professor went on to say that it was the complete consensus of the legal community that the American founders would have been shocked by the very idea of compensating people for regulatory takings. He left out the fact that the founders would have been shocked by land use regulations also, until this was mentioned by Assemblyman Ray Haynes. But I digress.

The next speaker was an attorney from Best, Best and Krieger, who purported to give an objective, non-partisan assessment of the initiative—and yet whose firm has contributed $25,000 to the opposition campaign. This attorney purported to give a history of eminent domain in California law—yet the only case he mentioned was the noncontrovrersial 1861 decision of Gilmer v. Lime Point. He then claimed this decision would have allowed eminent domain to benefit private entities—which is extremely misleading. He did not mention my article, A Natural Rights Perspective on Eminent Domain in California, 32 Sw. U. L. Rev. 569 (2003), which is to date the only history of California constitutional law regarding eminent domain ever published, and he did not discuss the events at the 1878 Constitutional Convention where the term "or damaged" was added to the takings clause, and where several separate proposals to allow private takings were shot down as violations of the public use requirement.

This attorney then went on to give a supposedly non-partisan overview of the initiative, claiming that it would require the government to "pay" property owners for "obeying the law," which is patently false. (The initiative would require government to pay property owners for taking their property through a regulation, unless it does so in the service of public health and safety.) He also claimed that the initiative would allow private condemnations such as that which occurred in Kelo. He based this on two provisions in the initiative: one which allows government to use the condemnation power to abate nuisances, and the other which allows government to take property and transfer it to a private entity if that private entity has contracted with the government to provide the public use. Although this is not a laughably absurd interpretation, it is quite a stretch, and very unlikely to persuade a court, given the language at the beginning of the initiative that declares its purpose to be eliminating the private use of eminent domain.

After these two presentations, some legislative staff gave an overview of the new laws recently signed regarding eminent domain. I discussed these laws in some previous posts, explaining that they do not, in fact, provide meaningful protection for private property rights. The staff claimed that under these new laws, government would have to show "substantial evidence" that an area is blighted before it can be condemned. This is misleading. The term "substantial evidence" means, in a court room, virtually any evidence at all. In fact, in the Mesdaq case, the court declared that it meant any evidence, no matter how flimsy or outdated. So the new laws in practice simply require city officials to say that there's substantial blight, and that's all.

Finally, there was a "round table" discussion, which lasted perhaps 20 minutes. Included was attorney Chris Sutton, the only proponent of Prop. 90 who was invited to speak, plus myself and Mr. Gilroy who were neutral, and five opponents of the proposition. Each person was given two minutes to speak. Among other misrepresentations of the initiative was the claim by a gentleman from an environmental group that the initiative would require government to compensate property owners for actions taken by the California Coastal Commission. In fact, the initiative grandfathers in all existing laws including the Coastal Act, so this claim is untrue.

It's unfortunate that legislators feel the need to resort to tactics like this extremely biased hearing to attack the initiative. There is a legitimate debate to be had over Proposition 90. It does have some genuine weaknesses and genuine strengths. Whether it's a good idea or a bad idea, however, can only be decided by an informed public. And the public is not going to be informed by stacking hearings 6-1, having political contributors give "objective" presentations, and giving two minutes of speaking time to those who are able to correct some of the misrepresentations.