California's Proposition 90 is a Trojan Horse

Time to kick off my November election coverage, starting with one of the worst of the propositions - number 90. I will probably be fine tuning this and other posts on various initiatives and candidates, and I'll post a comprehensive final version a week or two before the election. I also hope to have, as usual, Tim Redmond of the Bay Guardian to discuss the statewide measures on my October radio show.

Capitalizing on the negative public reaction to the recent eminent domain case decided by the Supreme Court decision, Proposition 90 is essentially intended to force governments to privatize more services while altering 900 years of common law upon which the security of public infrastructure is based. What most property owners don't realize is that they don't really own their property. They own a tenancy in it. The commonwealth owns all of the land within its jurisdiction. Accordingly, it can exercise "eminent domain" to seize land for the public benefit, the Constitution requiring compensation of fair market value of the property.


The case of Kelo v. New London involved the seizure of property in order to sell it to developers, the theory being that economic development is a "public use" that eludes the minimal 5th Amendment restrictions. The Supreme Court majority voiced reservations about the policy, but refused to null the seizure on the basis that the Connecticut local government had met Constitutional terms thus rendering the issue a state matter with no federal jurisdiction.

Since the decision various states have visited the question of reform at that level, specifically placing more restrictions on the purposes for which state or local governments may invoke their commonwealth rights to the land. Unfortunately, certain special interests have been pushing additional agendas into these reform proposals, and Proposition 90 is one of those "Trojan Horse" initiatives.

Currently, the law of "takings" requires that government compensate property owners when a new zoning, regulation, or statute is passed that deprives the property owner of the essential value of the property. This measure would reduce the standard to merely "substantial" value, and the measure doesn't bother to define the term which will open government up to a floodgate of litigation. Thus every law that could possibly have any impact on property, from rent control ordinances to environmental regulations. Even residential zoning ordinances would be at issue, as well as limited growth, parcel size minimums, ag zoning, worker safety laws, unionization rights, and virtually any benefit from basic urban civil engineering. The measure provides an ill-defined exception for public health and safety, and you can bet that more than a few governments will be trying to expand the scope of that exception, which will lead to even more litigation.

The actual portion of the proposition that actually deals with eminent domain is problematic in it's definitions, but less of an issue for me. "Public use" would be limited to seizures for purposes in which the government would either occupy the property itself, or lease it to a private entity that allows for public entry (such as a mall, baseball stadium, or university). It couldn't be used for private housing, nor private industry, and that's fine with me except that it does reduce a local government's ability to comprehensively plan local development. On the downside, the measure also fails to provide an exception for areas that create a public nuisance without a showing that each and every parcel contains the source of that nuisance, thus hampering redevelopment projects. And it couldn't be used to promote a new industrial or other local economic base in furtherance of a general plan. Personally, since general plans are often dictated by private monetary interests, I think this measure is going to backfire on some of the proponents - the proposal does thus incorporate some characteristics of karma.

And the measure places the burden of proof on government in any court battles, while depriving it the ability to recoup attorney fees.

And the measure also allows property owners to collect more than the value of the property itself, including presumably costs the property owner may have incurred in anticipation of his/her/its own uses, essentially requiring the government to put the owner back into the economic position it would have been but for the taking. Does this mean they're entitled to speculative profits? More lawsuits, and enormous costs to the taxpayer.

The normally conservative San Diego Union-Tribune had this to say:

The initiative then veers into radical territory in two ways:

It declares the compensation for seized property must reflect the value of the project to be built on the site, meaning an astronomical increase in the compensation taxpayers must provide.

It requires that private property owners be fully compensated when any government regulation causes their property to lose value. Decisions on matters as mundane as traffic lights, parking meters and noise abatement could be argued as having negative effects on property value. The vagueness of the initiative suggests this is just what sponsors want – an atmosphere in which local officials contemplating basic questions of governance see legal peril and costly lawsuits at every turn.

Did the trial lawyers surreptitiously take over California's eminent domain movement?

So, while we hope those appalled by eminent domain abuses continue lobbying the Legislature for reform - Sen. Christine Kehoe, D-San Diego, is a key player on the issue - we hope that this dismay doesn't translate into support for Proposition 90. It is a radical overreach that would create vastly more problems than it would correct.

Plenty more here and here.

And for an account of the movement behind this proposition and similar proposals in other states, please read this High Country News article.

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Music & Art Censorship: Real & Imagined

Censorship is a reality of our times, and its connections are seemingly unrelated, unless looked at in its entirety in historical and relevant events. Shostakovich died a mere thirty-one years ago. He feared for his life composing music that told "truth" about historical and political matters under Stalin's regimen at times. Stalin would have ordered him murdered, if it were not for Shostakovich's immense popularity. A notorious Stalin quote is, "Death solves all problems: no man, no problem." Non-related but disturbing, are the President's "Faith-Based and Community Initiatives," which have enabled numerous "government-funded social service jobs explicitly refuse to hire Jews, gay people, and other undesirables the name of religious freedom." (Michelle Goldberg: "Kingdom Coming." P.107). I experienced something similar in an interview from a local pastor for a church job. I was asked questions about my beliefs that were none of his business, and was required to participate in religious activities, despite the fact I was only being hired to play music. Gaining prominence, constituents and their elected officials who condone these discriminatory practices of the "Faith-Based Initiatives" have accomplished the following: elected a president, had two amendments be presented to amend the Constitution, and all but hand-selected the newest members of the Supreme Court (which can now be sued in an International Tribunal). Faith-Based Initiative Programs or its supporters may possibly hire composers and musicians, too. Also partially related is the recent Supreme Court ruling that the president overreached his constitutional authority, not to mention international opinion of these facts. Are these the "right conditions" for a future and possible storm of censorship? Maybe it is or maybe it's not. One possible scenario based out of factual accounts: since a woman was reported by her neighbor to federal authorities for having an "unpatriotic" poster in her home, would that same woman have been reported to federal authorities for having "unpatriotic" music? Maybe she would have been for listening to "The Star Spangled Banner" by Jimmy Hendrix. What's the difference between an "unpatriotic" poster and an "unpatriotic" song? Next, she might be strip-searched in full public view the next time she tried to fly, hypothetically speaking.  
  I suggest exploring, p/11454res20050926.html, and develop a view on these topics. It greatly disturbed me when I learned years ago that the composer I admire most lived in the already stated conditions during my lifetime: "audience-friendly" to the citizens of Russia, while Stalin's regimen attempted to subjugate Shostakovich to their repressive ideology. Telling the audience the "truth" isn't always easy, but that's what friends for.

To view my justification for my "possible scenario": /article13176.htm

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Chuck Keller's Blog
By Chuck Keller

The Bush administration will be experiencing a lot of court time over the next two years. Testifying before Congress, fighting cases, appealing their losses and, as usual, lying.

It's shameful what they have done in the name of "fear".. A sin..

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For our safety, Gitmo detainees deserve the rights afforded to any human.

America is at war with the unknown. We do not know the name of everyone involved in the attack on our country. We do not know who had the power to initiate the attack. We do not know how the attack was planned and executed. Nor, do we know why. We need to know these facts to protect ourselves and rectify our scars.

But in a desperate attempt to find these answers, we have put the safety of Americans at greater risk.

As we see in the decision and reasoning in the recent Supreme Court case, Hamdan v. Rumsfeld, America is trying Guantanmo Bay detainees by military commissions that violate the Geneva Convention and the Uniform Code of Military Justice.

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John Yoo and the reign of 6-year-olds

With the handing down of the Hamdan decision last week there was a spate of stories planted by unnamed Republican operatives about how forcing a congressional debate on the status of detainees in the "War on Terror". This spin was incredibly powerful and we saw front page stories in newspapers, offline and online, pushing this meme. Some on the progressive side, or rather those of us on the side of liberty and freedom, have pushed back against this outrageously divisive story line, but we have largely focused on the story line itself, not the underlying childishness of the storytellers themselves.

Fortunately John Yoo, the architect of many of the memos that were totally and utterly destroyed by the Supremes spoke publicly this weekend in the NY Times:

What the court is doing is attempting to suppress creative thinking.

This is not the logic of a serious person, this is the logic of a 6-year-old who has been brought to the Principals office for coloring all over some other student's notebook. And that is how we need to make sure we talk about these people. They are childish, petty and despise the fact that there are actually structures for authority here in the United States.

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