March 20, 2007

What Would California Proposed Initiative 07-006 Do? (Part 3 of 3)

By What Would California Proposed Initiative 07-006 Do? (Part 3 of 3)

Sections 3 and 6 of the League of Cities' ballot initiative seem internally inconsistent and potentially dangerous to California property owners.  Section 3 says that the initiative is not intended to change the definition of "public use" in California law.  This means that the initiative would have no legal effect on Kelo-style takings in California except for the limitation on taking homes for "private persons."

Section 6, on the other hand, says that the term "public use"—which is not defined in the initiative—would be interpreted to be consistent with the law in effect on January 1, 2007, which of course includes the Supreme Court decision in Kelo. Although the initiative is not very clear on this point, it would be easy for California courts to interpret this language as incorporating the Kelo definition of public use (as meaning "public benefit") into the state Constitution.

This is deeply troubling because at present it is not clear that California courts would follow the definition of "public use" provided in Kelo. It is still possible for a property owner to contend that the California Constitution's public use clause should be read as limiting the eminent domain power more strictly than its federal counterpart. Yet this initiative would seem to forcelose that possibility.

Given that, after Kelo, property owners can only hope for protection under their state constitutions, passage of this initiative would seem to expose the owners of California's businesses, the residents of California's apartments, California's churchgoers and farmers, to the abuse of eminent domain, stripped of their last constitutional protection.

What to read next