November 16, 2006

Spin, Spin for Your Life!

By Spin, Spin for Your Life!

by Timothy Sandefur

Reeling from their almost complete defeat on election day, anti-property rights groups are trying desperately—one might say New York Times-ily—to portray themselves as vindicators of justice and democracy. Of course, nothing could be more absurd. The elections last week brought an overwhelming landslide of opposition to the use of eminent domain for redevelopment. In some elections the majorities reached beyond 80 percent. Amazing, in a country where you can't get 80 percent of the people to agree that tax increases are bad for the economy or that evolution is real.

So here's the latest attempt: attorneys Robert Freilich and Seth Mannillo reveling in the defeat of Proposition 90 in the California Real Estate Journal. The failure of the proposition—which came within 5 percentage points of passing, despite its many legal flaws—proves, in their words, that "the property rights revolution, at least that revolution sponsored by extreme ideological foundations, may have ended when it reached the Pacific."

How pathetic. In fact, of the western states considering eminent domain reform, only two (California's and Idaho's) failed. Washington's I-933, which had nothing in it about eminent domain, also was defeated in a close race. But Oregon's and Arizona's initiatives succeeded, and Arizona's, like Prop. 90, includes both eminent domain and regulatory takings reform. Oregon already enacted regulatory takings reform that goes much farther than Prop. 90 would have. And in California, the race was a tight one. As Freilich and Mannillo try to look confident on stage, the set is collapsing behind them.

Part of that false confidence is built on simply ignoring the facts. The authors claim that California is more protective of property rights than other places, because "California state and federal courts have demonstrated close scrutiny of condemnations involving transfers to private entities." Nothing could be more absurd. In five years alone, there were 223 reported cases of private property being taken for transfer to private entities for "redevelopment." A 1998 report by the Public Policy Institute of California found that redevelopment agencies were spending some $3 billion—that's billion with a b—per year, and still losing money hand over fist. Meanwhile, they were even declaring vacant desert land to be "blighted" so that they could condemn it. Of course, Freilich and Mannillo refer only to judicial decisions, but anyone who isn't a naif or a liar knows that property owners rarely have the wherewithal to sue over a condemnation, and in most cases, they are forced to give up before even fighting. Given the way California's condemnation laws are skewed against property owners from the outset—setting special, short statutes of limitations, and extremely difficult evidentiary standards, to name just two things—one can hardly blame them.

Californians are not safe from eminent domain abuse. Any attorneys who tell you otherwise, especially if they have connections to such anti-property rights groups as the American Planning Association, is not to be believed.

Despite their attempts to mock the nation's backlash against the Kelo decision, that backlash proves that Americans overwhelmingly retain their belief in the moral and political vitality of private property rights. Americans who aren't left coast pro-government land-use lawyers like these guys, still realize that private property is not a permission, but a right—and that no allegedly "democratic" process has any right to tell you what to do with your land, just like the majority has no right to tell you whether you may speak or pray or think. Fortunately, last week, Americans overwhelmingly vindicated those principles, much to the chagrin of pro-government hacks.

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