California to vote again on eminent domain restrictions — two views

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kroculickgeorgeThe Saint Report looks at a upcoming vote in California in June to consider two statewide eminent domain proposals. Proposition 90, the Protect Our Homes Act that narrowly was defeated in 2006, was the first anti-eminent domain proposition to appear on the California ballot.

George Kroculick, a partner at Duane Morris with expertise on eminent domain, sets out the issue. Nearly three years after the U.S. Supreme Court’s controversial eminent domain ruling in Kelo v. City of New London, Connecticut, 125 S.Ct. 2655 (2005), the backlash against the ruling continues. More

Owen Eagan, a Saint Consulting division manager based in Los Angeles, writes why he believes these two proposals face an uphill battle. In 2005, a nationwide poll on attitudes towards land use and development issues sponsored by our company called The Saint Index found that 81% of Americans opposed the Kelo decision. The following year, voters in 12 states considered ballot initiatives to ban or curtail the taking of private property for economic development. Ten of the 12 passed with support ranging from 55 to 86 percent. However, California¹s Proposition 90 was not one of them. So why not?

Proposition 90, which was primarily funded by New York-based developer Howie Rich, was billed ³The Taxpayer Trap² by a broad and diverse coalition ranging from the Sierra Club to the California Taxpayers Association, the likes of which will probably never be seen again. It was deemed a taxpayer trap because it would have changed the state constitution to allow any landowner to sue the government for any action that resulted in a substantial economic loss to one¹s property. When Oregon passed a similar law in 2004, it resulted in thousands of claims seeking billions of dollars in compensation.

This time around, Proposition 98 also has a poison pill — the rent control provision — which is being exploited by proponents of Proposition 99. So far, it seems to be working. According to a recent poll by the Public Policy Institute of California, Proposition 98 was opposed 41-37 percent while Proposition 99 was supported 53-27 percent.

However, neither campaign’s numbers are encouraging. There are hundreds of factors that one needs to consider before placing an initiative on the ballot but the most important one to consider is the level of support that a measure enjoys before any information is offered to the voters. Unless your support is 70 percent or above, I hope your effort is worth the fight or you have money to burn because your chances of success, regardless of the issue, are not very good.

So what about the number of undecideds on both sides? And what about the 81 percent of Americans who opposed the Kelo decision? And what about the success of other ballot initiatives in other states? I think California voters are now skeptical of this issue given the experience of Proposition 90 and the
fact that there are two competing proposals makes voters even more suspicious of special interests. Therefore, at this point, I predict that neither will pass. (Note: I reserve the right to change my mind as the
campaign progresses but I doubt I will.)

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