Prop 90 and Kelo
The Wall Street Journal has a good editorial on the various eminent domain propositions coming up for vote on Tuesday. Unfortunately, I think that it understates the problems with Prop 90, the speicifc California initiative that I’ve been agonizing over since I took the time to read it. I chose to share my thoughts with their editors. Here’s what I had to say:
Proposition 90, California’s “anti-Kelo” initiative on Tuesday’s ballot, is problematic for reasons beyond the political scare tactics you cite. The Supreme Court’s deplorable Kelo decision eviscerated the “public use” condition of the Fifth Amendment’s takings clause. States taking corrective action, whether by legislation, constitutional amendment, or referendum, must restore the limitation that governments may seize private property only when broad and essential public needs mandate such an objectionable nullification of our liberty.
As you note, however, the California initiative (like those in Arizona and Idaho), couples this critical objective with a “requirement that states compensate citizens for regulations that devalue property.” Proposition 90 creates a very strong form of “regulatory taking,” under which citizens can sue for any regulatory change that reduces property values. A close reading of the initiative suggests that this right is unlimited; a series of regulatory reforms whose net effect is to increase property values may nevertheless lead to litigation if individual regulations decrease those values relative to what they might otherwise become.
As an attorney with some experience in takings law, I know how complex and contentious the issue of regulatory takings is. By insisting on coupling a critical reform with a contentious one, the drafters of Prop 90 have put California’s voters in an uncomfortable situation: Passage of Prop 90 will imply voter support for a strong regulatory takings regime. Rejection of Prop 90 will imply an acceptance of the unbounded confiscatory authority that Kelo granted to California’s states and municipalities. With but a few days to go, I have yet to decide how I will vote on this proposition—and I have studied the issues at stake. California’s voters deserve a cleaner choice.
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