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Tim Sandefur on California Proposition 99 - the Deceptive Eminent Domain "Reform" Initiative:

Tim Sandefur of the Pacific Legal Foundation has an excellent post detailing some of the dangers of Proposition 99 - the deceptive California eminent domain "reform" initiative that purports to protect property rights against takings but actually undermines them. Prop 99 is sponsored by the California League of Cities and other government organizations that seek to retain the broadest possible condemnation authority for themselves.

I wrote about some of Proposition 99's other flaws here. The great danger posed by Proposition 99 is that nonexpert voters will understandably assume that it really does protect property owners, without realizing that it will actually undermine their rights by 1) offering no real protection and 2) blocking implementation of Proposition 98, a ballot proposal that really would give property owners protection against the kinds of takings authorized by the Supreme Court Kelo v. City of New London. Even if Prop 98 and Prop 99 both pass, Section 9 of Prop 99 would negate Prop 98 so long as Prop 99 gets more votes than 98 does. Understandably, even relatively well-informed voters could easily be fooled by Prop 99.

I have written an entire article on the ways in which state governments have used political ignorance to block meaningful eminent domain reform, as well as many other works on ignorance more generally. And I have to give credit to the sponsors of Prop 99 where credit is due: This is the most skillfull attempt to manipulate voter ignorance on the eminent domain issue that I have ever seen. In most cases, efforts to exploit political ignorance in this field simply take the form of passing off cosmetic measures that don't really constrain takings as effective ones that do. They portray efforts to do nothing as efforts to do something. Prop 99 goes one step further. It actually dresses up a proposal that would undermine property rights as an effort to protect them.

glangston (mail):
I received a "Voter Guide" (not an official party organization) in the mail that had quotes by Arnold and ex-Gov. Pete Wilson saying don't vote for 98. It also recommended re-election of my local State Senator Tom Harman who is for 98.

Also included was a blurb from the AARP that 98 would harm seniors. Lastly it attributed 98 to the efforts of a few wealthy landlords.
5.13.2008 5:04pm
Thoughtful (mail):
Glangston,

What? Nothing about harming the children?
5.13.2008 5:33pm
Larryp:
It appears prop 98 will going down to defeat, most likely because prop 98 opponents are harping on the repeal of all rent control. I don't understand why prop 98 sponsors included this obvious non-starter of a proposal in this political climate.

This mistake especially infuriating because rent control is not an issue in much of the state and no new rent control laws can be passed anyway.
5.13.2008 5:35pm
Lior:
Are you arguing that the voters would actually gain by becoming informed about this particular debate? If not, then I don't see a problem here. The voters will vote for 99, will feel better about themselves when it passes, and will have saved the costs of becoming informed. The business interests will make the obvious gains. What's the problem?
5.13.2008 5:44pm
steve (mail):
you think that's bad. how about LA city council's recent ''telephone tax reduction and modenization'' act which actually raised city taxes.. that qas a nice one
5.13.2008 5:46pm
HeScreams:
Oof -- this is getting convoluted.

In the comments to earlier post (See the 'Related Posts'), Ilya Somin argues that existing rent control laws are protected, but his argument is belied by the text he quotes, which only grandfathers in current tenants, not laws. (And even if Somin were correct, what about future laws?) Tim Sandefur argues that Prop99 is a Trojan horse, then addresses Prop98's RC provisions by advocating the abolition of RC.

But it seems to me that the RC provisions in 98 are almost as underhanded as the eminent domain 'reforms' in 99. They're not labeled as such; they're a side effect of very broad language. Prop98 advocates (Somin and Sandefur excepted) don't tout or even acknowledge the RC part, and don't rebut or even acknowledge criticism of the RC parts. (See the TV ads, print ads, and arguments in the voter guide.)

To me, the RC provisions were either a) a Trojan horse or b) an unintended consequence of overbroad language. Either way, I think the correct solution is to vote no on 98 AND 99. Instead, hold out for a eminent domain proposition that doesn't include RC. If you're anti-RC, then vote for a proposition explicitly dedicated to abolishing RC.

I think Sandefur is wrong to advocate voting for 98 and then later revoking the RC provision. All the talk on this blog about default choices and rational voter ignorance should tell us that once RC is written into law, it's very likely to stay there. Moreover, I think this shows again the dangers of the proposition system: the all-or-nothing approach to legislative language. Why not allow a legislature debate and revise/amend the details of a bill this complicated?
5.13.2008 6:05pm
Robert West (mail) (www):
Larryp: the sponsors of Proposition 98 included rent control in it for the same reason that sponsors of the previous post-Kelo reform included regulatory takings: because California's conservatives are, by and large, incapable of figuring out what a majority of the state will support and regularly overreach.
5.13.2008 6:35pm
CrazyTrain (mail):
Ilya. Pot. Kettle. Black. What a joke this post is?!?!?!? 99 is indeed misleading, but the description of Prop 98 as simply "giv[ing] property owners protection against the kinds of takings authorized by the Supreme Court Kelo v. City of New London" is utterly misleading and absurd. Prop 98 would phase out rent-control entirely, and would create whole new types of regulatory takings that have consistently been rejected by the US and California Supreme Courts. Either Ilya has no idea what he is talking about (very unlikely) or this is one of the most dishonest posts I have read here or anywhere else in the blogosphere. Hacktacular!!!!
5.13.2008 6:35pm
glangston (mail):
regularly overreach



I suppose they still believe they have the same kind of support they had when they passed Proposition 13. Silly guys.
5.13.2008 7:21pm
Justin Levine:
Ilya - Once again, you completely ignore the real issue here: RENT CONTROL.

Most Californians are far more concerned about the rent control issue than the Kelo/takings issue.

If you want to argue against rent control, fine. But it is very galling to sit here and see you describe Prop. 99 as "deceptive" when it is Prop. 98 that is the true "Trojan horse" due to the fact that it is really all about eliminating rent control. This is completely dishonest of you and we deserve a far better discussion of this issue than the one you are choosing to provide. Even when I've disagreed with Volokh posters, I have always found them to have the highest integrity in their arguments. I'm sad to say that this is one of the few times I've had to question that.
5.13.2008 7:29pm
Steve in CA (mail):
I have to agree with Justin Levine and the rest, even though I'd vote to abolish rent control if that were the subject of its own ballot measure. The Prop 98 rent control provision is just sneaky. There's not even much rent control in California (it's mostly just in mobile home parks), so there's no great need to outlaw it.

I'll probably vote for 98 anyway because I think it would do more harm than good, but it's probably going to fail, and the sponsors have only themselves to blame. I don't even see why they were allowed to include the rent-control provision -- California law prohibits ballot initiatives that cover more than one subject, and to me, "reform eminent domain" and "eliminate rent control" are two subjects.
5.13.2008 7:41pm
Dr. T (mail) (www):
Why are most commenters discussing Proposition 98 when the topic is proposition 99? Is there some reason why linking them is required?

I believe that the California local governments employ at least one intelligent (though devious) person. Using a proposition (normally a way for individuals to force a change in government policy) to establish a government-desired policy is brilliant. Most voters will read the proposition name, skim the first paragraph, and vote YES. Since I am not a fan of the proposition system, seeing it turned on its head doesn't bother me. Perhaps the California voters will eventually scrap it.
5.13.2008 7:52pm
Paul B:
As someone who ripped Ilya for his misleading comments in support of Prop 98 last week, let point out the lack of honesty on the part of Prop 99 supporters as well. From the state's "Official Voter Information Guide" (produced by the Secy of State), as part of the argument made against Proposition 98 by the heads of California AARP, LWV, and Police Chiefs Association:

"I'm a retiree and a veteran, and I've lived in my studio apartment for 30 years. Rent control is the only way I can afford the roof over my head. 80 year old veteran, SF....I'm a retired widow on a fixed income. Proposition 98 would financially devestate many seniors like me who depend on rent control and othe laws that protect us against unfair landlords. 85, retired, Calistoga."

As has been pointed out existing beneficiaries of rent controls would not be affected by Prop 98. For leaders of AARP, League of Women Voters, and Police Chiefs to lend their names to this sort of thing does not speak well of their integrity.

The reason that Prop 98 includes the phaseout of rent control is that in order to get an initiative onto the statewide ballot, millions of dollars must be raised to hire signature gatherers and for followup advertising. In order to raise this money, a cause like emminent domain reform that has few obvious benefactors must offer something additional to one or more groups that will greatly benefit if the initiative is modified to include their specific interest without violating the state's prohibition on any one initiative covering more than one subject.

The shortcomings of Prop 98 reflect an intellectual weakness that conservatives in the state have suffered from since the passage of Proposition 13 in 1978. Unable to envision how a more friendly legislature can be elected, they have instead relied upon the initiative process far more than liberals as a way to accomplish their goals rather than engage in the grubby work of convincing citizens to vote for legislative candidates who will support their beliefs.
5.13.2008 7:53pm
NickM (mail) (www):
Follow the money.

Political consultants run the serious initiative campaigns, and for them, it's not about passing an initiative as much as it is about attracting large contributions - and if the "add-on subjects" that draw these contributions in cause the initiative to go down to defeat, so much the better - they can always run another initiative and earn more money.

Legislators of both parties have turned over far too much power to a small group of people concerned more with their own pocketbooks than their clients' success.

Nick
5.13.2008 8:17pm
Mark F. (mail):
The shortcomings of Prop 98 reflect an intellectual weakness that conservatives in the state have suffered from since the passage of Proposition 13 in 1978. Unable to envision how a more friendly legislature can be elected, they have instead relied upon the initiative process far more than liberals as a way to accomplish their goals rather than engage in the grubby work of convincing citizens to vote for legislative candidates who will support their beliefs.

It's only a "weakness" if it does not work. Getting legislation passed by either the legislature or the initiative process are both legitimate.
5.13.2008 8:51pm
Mark F. (mail):
...when it is Prop. 98 that is the true "Trojan horse" due to the fact that it is really all about eliminating rent control.

No, it's not ALL about eliminating rent control. Ridiculous.
5.13.2008 8:54pm
Justin Levine:
Mark F. -

You are technically correct in that Prop. 98 also addresses Kelo/takings issues. However, the rent control issue is what is currently driving the real debate over these Propositions in California - NOT the Kelo issues. The rent control issue is also serving as the primary motivation for key Prop. 98 backers. So while the statement that Prop. 98 is "all about eliminating rent control" contains some hyperbole, it is far closer to the truth than what Ilya's post is willing to admit, therefore I make no apologies for the statement.
5.13.2008 9:15pm
Justin Levine:
Steve in CA -

I'll admit that I don't know about the scope of rent control laws throughout the entire state of California, but I can tell you that it definitely exists everywhere in the key housing market of Los Angeles for any multiple family dwelling built before 1978 (which still comprises most of the apartment complexes in the city). So it does go well beyond mobile home parks.
5.13.2008 9:20pm
Robert West (mail) (www):
Glangston: Proposition 13 was enacted in a different era, in response to widespread abuse which effected every homeowner. The situations aren't analagous at all.

Dr. T: we're talking about Proposition 98 because Proposition 98 and 99 both address eminent domain, and they are being marketed as alternatives to one another.
5.13.2008 9:37pm
Dilan Esper (mail) (www):
But it seems to me that the RC provisions in 98 are almost as underhanded as the eminent domain 'reforms' in 99. They're not labeled as such; they're a side effect of very broad language. Prop98 advocates (Somin and Sandefur excepted) don't tout or even acknowledge the RC part, and don't rebut or even acknowledge criticism of the RC parts. (See the TV ads, print ads, and arguments in the voter guide.)

Folks, EVERY election in California features deceptive initiatives. Unfortunately, the California Courts refuse to do anything about it (under the guise of "the initiative power is sacred", they interpret that to mean "courts should have no role even in ensuring that California voters are fooled into voting for something they wouldn't support"). This is despite the fact we actually have constitutional provisions (such as the single subject rule) that prohibit deceiving the voters.

Indeed, our Supreme Court has actually given effect to voter deception. For instance, they upheld an initiative that sounded like it denied tort recovery to felons, but actually denied tort recoveries to uninsured motorists. And an anti-affirmative action measure whose supporters assured the public that it would not affect minority outreach programs was held to prohibit minority outreach programs.

This is as old as our initiative process. Sponsors of 98 and 99 are just following a trail that was blazed for them long ago.
5.13.2008 10:09pm
Smokey:
If the government believes that tenants should have help paying the rent, then the gov't should subsidize tenants, rather than requiring the provider to do the subsidizing of everyone who rents, from poor to middle class to rich.

I can hardly wait for the initiative requiring attorneys to subsidize their clients, like property owners have to subsidize their tenants. That one will require lots of popcorn!
5.14.2008 12:12am
David M. Nieporent (www):
And an anti-affirmative action measure whose supporters assured the public that it would not affect minority outreach programs was held to prohibit minority outreach programs.
No, it wasn't. And since when did liberals care about originalism, anyway?

Prop 98 would phase out rent-control entirely, and would create whole new types of regulatory takings that have consistently been rejected by the US and California Supreme Courts. Either Ilya has no idea what he is talking about (very unlikely) or this is one of the most dishonest posts I have read here or anywhere else in the blogosphere. Hacktacular!!!!
Presumably by "this" you mean your own comment, since there's no regulatory taking provision in Prop 98.

And of course rent control is a taking.
5.14.2008 12:54am
Dilan Esper (mail) (www):
David:

I'll quote my earlier post on what happened with affirmative action:

"Here was the ballot pamphlet argument rebutting the argument against 209:

"http://vote96.sos.ca.gov/Vote96/html/BP/209norbt.htm

"Here's the relevant passage:

"'Affirmative action programs that don't discriminate or grant preferential treatment will be UNCHANGED. Programs designed to ensure that all persons--regardless of race or gender--are informed of opportunities and treated with equal dignity and respect will continue as before.'

"Now, I realize that one COULD argue that this language really meant that minority outreach would be prohibited, I would suggest to you that if that was the carefully drawn intent of the intiative, then the sponsors were being INCREDIBLY misleading, because they didn't say that the initiative would bar ANY forms of outreach, and they were responding to an argument by opponents that it would bar such outreach. Specifically, the argument that was being rebutted said that the following forms of affirmative action would be banned: 'affirmative action that encourages the hiring and promotion of qualified women and minorities; outreach and recruitment programs to encourage applicants for government jobs and contracts; and programs designed to encourage girls to study and pursue careers in math and science'. (The link to that is at http://vote96.sos.ca.gov/Vote96/html/BP/209noarg.htm

"The sponsors didn't continue on and say, for instance, 'Of course, such programs will be illegal if they are directed specifically towards encouraging minorities to apply for a position.' Similarly, your article [an article by Professor Volokh] came too late for the voters to know that they were approving language that could be use to bar minority outreach. The only thing that voters knew is that there was language in the voter pamphlet that implied that these programs would not be touched, assuring voters who might be alarmed from reading the argument against that these programs would be called into question.

"The natural reading of the ballot pamphlet argument-- and clearly the one the sponsors wanted the electorate to believe-- was that the initiative wouldn't prohibit state agencies from encouraging minorities to apply for jobs, because such programs were 'designed to ensure that all persons--regardless of race or gender--are informed of opportunities and treated with equal dignity and respect'.

"So this was a bait and switch. (And by the way, I am an opponent of affirmative action that takes the form of race-based preferences.)"

And here's another post by me:

"Here's some more. I had to go on the wayback machine for this one, from the sponsors of 209:

"Doesn't the California Civil Rights Initiative prevent the public school system, including the universities, from conducting outreach programs?

"Not at all. Outreach, in the original, classical sense of affirmative action, never involved preferential treatment on the basis of race, sex or ethnicity. Outreach programs which neither discriminate nor grant preferential treatment on the basis of these criteria can continue under the California Civil Rights Initiative.

"Now, by now I know the script. You guys are going to say that the words 'NOT AT ALL' mean nothing, because they were followed by a statement that said that outreach programs that neither discriminate nor grant preferential treatment would be legal.

"But 'NOT AT ALL' is the whole ballgame here. If they were honest (which they weren't), they would have said 'not IF the outreach programs are not targeted based on race, gender, or ethnicity'. But they didn't say that, and that was deliberate. They wanted the reader to read 'NOT AT ALL', be assuaged, and not read the explanatory sentences.

"And 'NOT AT ALL' is not even simply misleading. It is a lie. The initiative DID affect outreach programs."

And finally:

"Here's one more. A fact sheet on 209. This time, they don't even bother with the cover story about nondiscriminatory outreach.

"Rather, it simply says that Prop 209 will 'NOT impede the enforcement of anti-discrimination laws, or efforts to include previously excluded citizens.' (caps in original).

"So 'efforts to include previously excluded citizens' will NOT be impeded by 209. And no distinction is made between such targeted and non-targeted outreach.

"This next one I almost hate to cite, because I have so much respect for our host.

"Here's Professor Volokh, in a co-authored article: 'Current law lets government discriminate in favor of some people based on their race or sex to the disadvantage of others who aren't eligible for such preferences. Californians and Americans generally are overwhelmingly opposed to such preferential policies The CCRI would effectively prohibit these, while leaving intact outreach and other nonpreferential forms of affirmative action.'

"So, he was doing it too. Notice the deliberate parsing of this sentence. It seems to say that on the one hand there's (impermissible) preferences, and on the other hand there's (permissible) outreach. It places 'outreach' in the category of 'nonpreferential forms of affirmative action' and says that 'outreach' will be left 'intact'.

"In fact, 'outreach' was not left intact, because some outreach did not fall in the category of 'nonpreferential forms of affirmative action'. But Professor Volokh didn't explain this.

"Look, I look forward to a denial from Professor Volokh-- or anyone on the 209 campaign-- that the strategy was to emphasize that 'outreach' would be permitted, making sure to throw in a line about how such outreach didn't discriminate or grant preferential treatment, while never explicitly mentioning that sponsors contended that forms of outreach that targeted minorities or women did violate the initiative. I think that's obvious.

"But I would also indicate that I have now proven Professor Volokh's denial false on its own terms, because the initiative's sponsors told the public WIHOUT qualification that outreach would be affected 'Not at all' and that the initiative would 'NOT impede the enforcement of anti-discrimination laws, or efforts to include previously excluded citizens'.

"Given the limited availability of materials from 11 years ago, and the fact that I am not a scholar and don't have immediate access to a library, this is about as conclusive a proof as could possibly been provided."

Of course, that was the last post on the thread. Never did anyone from the 209 campaign deny that this was the strategy.
5.14.2008 1:25am
Robert West (mail) (www):
Smokey: that's a fine policy argument. But those of us who disagree with that policy argument, while agreeing with the policy argument that California should not exercise eminent domain to the limits of the Kelo doctrine, are unlikely to vote for an amendment which contains both.

Which is why it was foolish of the proponents of the measure to conflate the two issues.
5.14.2008 1:56am
Snarky:
You may argue that it is political ignorance that will lead people to vote for Proposition 99. I would argue that it is the clause prohibiting rent control. Also, the phrase "damaging public property" is ambiguous. Does it mean physical damage only? Or could it also mean regulation?

If a local city passes an ordinance ordering a local factory not to operate at certain hours to keep noise down during certain hours, has it "damaged" that "private property" for "private use."

It sounds like the advocates of Proposition 98 are dishonestly trying to make it more difficult to not only condemn private property, but to merely regulate it as well. It is precisely this sort of overreaching that doomed the previous eminent domain proposition. I guess the advocates of these measures just can't help themselves; they just must shoot themselves in the foot.

Also, Proposition 98 encourages speculative litigation, because it awards attorney's fees in cases where an individual is awarded more for their property than the government offered. This would encourage attorney's to bring such cases in marginal situations. Even an award of $100 more than the government initially offered would mean tens of thousands of dollars in attorney's fees.

What the Proposition should have said is that attorney fees will be award is X% greater than that government originally offered. Something like 10%.

It should be noted that this aspect of Proposition 98 has absolutely nothing to do with Kelo. Instead, it applies to increase the costs of taking property for uses that are unambiguously public.

What Proposition 98 should be called is the "Frivolous lawsuit abuse encouragement initiative."

What I find interesting is that the advocates of Proposition 98 probably would be the first to bitch about "lawsuit abuse." It just goes to show that they are bunch of hypocrites.

There is no time limit on the right of corporations to repurchase property that is shifted to other uses. So, if the government takes property from corporation X for a public school, and 200 years from now decides due to changing population that this school and its facilities should instead be a barracks for the state national guard, it must allow corporation X to repurchase that property first at its market values 200 years ago.

Also, the requirement that the government allow repurchase if the use changes does not apply just for changes from public to private use, but also applies for changes in public use. So, before a city can convert a fire station into a police station, it must first give the original owner the right to repurchase at the original fair market value (which may be much less than the current fair market value).

Basically, Proposition 98 is an extreme measure that overreaches, just as the eminent domain measure proceeding it did.

I am going to vote for Proposition 99 and against Proposition 98. And it is not because I am ignorant.

If anything, political ignorance is what the advocates of Proposition 98 are banking on. Note that Somin nowhere decided to mention the downsides of Proposition 98 in his post.

I wonder why?

It is pretty hypocritical for Somin to decry the dangers of ignorance and then try to take advantage of ignorance for his own purposes.
5.14.2008 2:22am
Snarky:
I should point out another fact.

In California, attorney's who take cases on a contingency basis are eligible for attorney's fees.

So, attorney's have an incentive to take cases on a contingency basis on the hope that they can convince a jury to award as little as $100 more than the government offered. The property owner faces no risk of paying fees to an attorney and has an incentive to pursue litigation even if they have a good chance of losing.
5.14.2008 2:43am
Snarky:

And since when did liberals care about originalism, anyway?


Even if we do not follow originalism ourselves, we expect conservatives who self-righteously proclaim that all non-originalists are the scum of the earth to follow it themselves.

Conservatives who want to selectively invoke originalism for its rhetorical appeal but do not really follow it when inconvenient should be called out as the lying scum hypocrites that they are.

Finally, there are liberals who are also originalists. Jack Balkin comes to mind. But even liberals who are not originalists have every right to verbally slam conservatives who apply originalism in an opportunistic and predatory manner.
5.14.2008 2:48am
David M. Nieporent (www):
"Now, I realize that one COULD argue that this language really meant that minority outreach would be prohibited, I would suggest to you that if that was the carefully drawn intent of the intiative, then the sponsors were being INCREDIBLY misleading, because they didn't say that the initiative would bar ANY forms of outreach, and they were responding to an argument by opponents that it would bar such outreach. Specifically, the argument that was being rebutted said that the following forms of affirmative action would be banned: 'affirmative action that encourages the hiring and promotion of qualified women and minorities; outreach and recruitment programs to encourage applicants for government jobs and contracts; and programs designed to encourage girls to study and pursue careers in math and science'. (The link to that is at http://vote96.sos.ca.gov/Vote96/html/BP/209noarg.htm)
First, I don't see how this means that the "sponsors" were being misleading. The sponsors didn't issue the Hi-Voltage decision you're complaining about. (At least, I assume that's the decision to which you're referring.) To the extent that your complaint is valid at all, it should be "The California courts did not follow the intent of the voters/intent of the sponsors/original meaning/original intent/original understanding of the initiative."

Second, I'll repeat what I said last time you made this argument: you, like the critics of 209, are conflating race neutral outreach programs with discriminatory outreach programs. The supporters of 209 told the truth; you're reduced to arguing that people misinterpreted them because people assumed that anything which had the word "outreach" slapped on it would be allowed -- no matter how discriminatory it was. There's no basis for your claim that voters were unable to read and made such a ridiculous assumption.
5.14.2008 4:03am
David M. Nieporent (www):
So, attorney's have an incentive to take cases on a contingency basis on the hope that they can convince a jury to award as little as $100 more than the government offered. The property owner faces no risk of paying fees to an attorney and has an incentive to pursue litigation even if they have a good chance of losing.
Then I guess the government shouldn't take someone's property and not pay him just compensation, as the Constitution requires.
5.14.2008 4:09am
Snarky:

Then I guess the government shouldn't take someone's property and not pay him just compensation, as the Constitution requires.


What this will force the government to do is pay much more than just compensation. Even then, lawyers will have an incentive to bring cases on the hope that they can convince a jury that the property is worth slightly more than the government is paying.

Also, why shouldn't the property owner pay the government attorney fees if they lose a lawsuit? It should be the prevailing party that is entitled to attorney's fees. If a property owner brings a frivolous suit, they should have to pay.

Oh wait. I guess lawsuit abuse does not matter.
5.14.2008 4:39am
Tony Tutins (mail):

If the government believes that tenants should have help paying the rent, then the gov't should subsidize tenants, rather than requiring the provider to do the subsidizing of everyone who rents, from poor to middle class to rich.

Likewise property tax is also a "taking", but somehow property tax comports with the Constitution. And in California, rent control is matched with property tax control, thus lessening the hurt to the landlord's wallet. For example: Houses on my block are assessed from $21,500 to $897,000. The $21.5K house is a rental, the original resident having moved to a swanky neighborhood nearby years ago. Perhaps if landlords had tied eliminating rent control to eliminating the applicability of Prop 13 to commercial/rental property, Prop 98 would have been more palatable.
5.14.2008 10:49am
Larryp:
I think NickM is right here: it's the political consultants who put together ballot initiatives and campaigns who have a clear interest in producing close, hard-fought, expensive contests.

Prop 98 is all about rent control, at least from a political standpoint. No98yes99.com claims (probably unfairly) that 85% of the prop 98 funding came from landlords.

I rent in a large apartment complex. I got a mailing from no98yes99 picturing a sad young woman crouched under a huge stack of taped up moving boxes: "Attention Renters: Prop 98 is a landlord scheme to unfairly evict you and withhold security deposits." Not subtle.
5.14.2008 11:56am
Dilan Esper (mail) (www):
Second, I'll repeat what I said last time you made this argument: you, like the critics of 209, are conflating race neutral outreach programs with discriminatory outreach programs. The supporters of 209 told the truth; you're reduced to arguing that people misinterpreted them because people assumed that anything which had the word "outreach" slapped on it would be allowed -- no matter how discriminatory it was. There's no basis for your claim that voters were unable to read and made such a ridiculous assumption.

David:

This is what advocates of 209 said:

"Prop 209 will 'NOT impede the enforcement of anti-discrimination laws, or efforts to include previously excluded citizens.'"

There was NO qualification included about race-neutral vs. race-based efforts to include previously excluded citizens.

They said that despite the fact that it was their intention (and Proposition 209's sponsors specifically came into the Hi-Voltage case against the government's position) to challenge "efforts to include previously excluded citizens".

Look, you are detracting from the major point here. Initiative sponsors in California "logroll", that is, they sell initiatives as doing one thing so they can get something else enacted into law. This is one reason I oppose the initiative process. But if we are going to have it, we should enforce the single subject rule rigorously. If someone wants to ban race preferences and minority outreach programs, let them put 2 initiatives on the ballot. And we should also hold all sponsors to their words. If the sponsors say that an initiative doesn't have a particular effect, that should be binding even over the plain meaning of the words. The voters aren't legislatures and they don't read the statutes. They read, if anything, the ballot arguments and the advertisements.
5.14.2008 1:56pm
The Real Bill (mail):
What I really hate about 98 is that investors that purchased property subject to rent control at the time will get a windfall. Rent control was baked into the purchase price. Remove it and they get an unfair gain. Guess who's funding 98? These investors who stand to gain.

Those who owned property when rent control was instituted got the shaft. IANAL, but I don't understand how that was not considered a taking.

Sometimes it seems (to this native Californian) that California can't do anything right. : (
5.14.2008 2:53pm
The Real Bill (mail):
Full disclosure (not that it matters): I've lived in a rent control apartment in San Francisco for more than 13 years. My rent is about 40% of the market rate. Prop 98 won't affect me, though, since I'm grandfathered in. In addition, when I move, in the not so distant future, it's likely that I'll live in a SFH for the rest of my life (which are not subject to rent control).
5.14.2008 2:59pm
John D (mail):
I won't go so far as to insist that the backers of initiatives are always deceptive, but California has certainly had its share of deceptive initiatives.

So, for example, tomorrow we'll find out if Prop 22 was an affront to human liberty and a violation of the California Constitution. (I think it is.)

When that particular shoddy bill of goods was sold to the voters, we were told that it was necessary to prevent same-sex couples from marrying in another state and then bringing their marriage to California. [snark] This is something already forbidden to opposite-sex couples, of course. [end snark]

Subsequently, the Prop 22 Alliance argued that the existence of Prop 22 prevented California from registering domestic partnerships. (They lost that one.)

In the marriage cases they made the claim that Prop 22, despite its location in the laws concerning out-of-state marriages, prevents California from licensing same-sex marriages. I have my hopes that this will also be a losing argument.

One thing seems clear, no matter how narrow the reasoning provided by the backers of an initiative, once it is approved by voters, they tend to take an expansive view of its application.

This is just one reason why I almost reflexively vote against initiatives.
5.14.2008 6:54pm
Smokey:
Robert West:
...it was foolish of the proponents of the measure to conflate the two issues.
I agree wholeheartedly.
5.14.2008 7:26pm
Justin Levine:
Let's see if we can all agree on something -

BOTH Props. 98 and 99 are deceptive in some measure, and if Iiya Somin wants to maintain his credibility on this issue, he should at least acknowledge the deceptiveness of Prop. 98 with regards to the rent control issue.

This is not to suggest that he should endorse rent control if he happens to be against it - just that he should recognize what a vital issue it is to this debate and confront it head on.

By ignoring it, he comes across as a propagandist shill for Prop. 99.
5.14.2008 8:01pm
glangston (mail):
Under 98, property under rent control would remain that way until present tenants moved. Rent control would be phased out on a unit by unit basis.

Prop. 99 could rightly be described as a feeble effort, signifying no interest in change. The language of the exceptions is particularly so, stating that any prohibitions in Prop. 99 "would not apply if the property owner did not live in the home or had lived there for less than a year.
5.14.2008 8:05pm
David M. Nieporent (www):
There was NO qualification included about race-neutral vs. race-based efforts to include previously excluded citizens.
Of course there was. That was inherent in Prop 209. After all, liberals describe traditional race-preference affirmative action as "efforts to include previously excluded citizens." If the one sentence you're taking out of context weren't understood to exclude race-based efforts, then the entire Prop 209 wouldn't do anything at all.

Look, you are detracting from the major point here. Initiative sponsors in California "logroll", that is, they sell initiatives as doing one thing so they can get something else enacted into law. This is one reason I oppose the initiative process. But if we are going to have it, we should enforce the single subject rule rigorously. If someone wants to ban race preferences and minority outreach programs, let them put 2 initiatives on the ballot.
No, we shouldn't enforce the single subject rule rigorously; that's just an opportunity for judicial mischief, as your own example illustrates. It's an invitation for judges to strike down statutes they personally disapprove of with ridiculous distinctions. (In fact, we had a thread on that very point on Volokh a few years ago.) Ridiculous distinctions such as the notion that banning racial preferences is not to be understood as a ban on racial preferences.

And we should also hold all sponsors to their words. If the sponsors say that an initiative doesn't have a particular effect, that should be binding even over the plain meaning of the words. The voters aren't legislatures and they don't read the statutes. They read, if anything, the ballot arguments and the advertisements.
That's a rather... interesting theory, but I think all it proves is that you oppose the initiative process, and you're constructing absurd hurdles to jump over. Public statements of people with no special standing cannot possibly be "binding" on the people who actually enact the statute. Legislators don't read the statutes either. But that's what they enact. Statutes. Not public statements about the statutes.
5.14.2008 9:45pm
Tony Tutins (mail):

In the marriage cases they made the claim that Prop 22, despite its location in the laws concerning out-of-state marriages, prevents California from licensing same-sex marriages. I have my hopes that this will also be a losing argument.

In the Proposition 22 ballot arguments, Dianne Feinstein signed her name to an argument that same-sex marriage was already illegal in California, thus Prop 22 was wholly unnecessary. Prop 22 passed anyway, to close the last loophole that same-sex marriage could sneak through, not out of some perverse desire to discriminate against out of state couples. I suppose the Cal Sup. Ct. could ignore the express will of the voters, but they themselves are subject to recall. The same-sex marriage forces should put a measure on the ballot, and not take refuge in what they see as an ambiguity.
5.15.2008 12:30am
Dilan Esper (mail) (www):
If the one sentence you're taking out of context weren't understood to exclude race-based efforts, then the entire Prop 209 wouldn't do anything at all.

You can locate the context of it in the earlier thread, David. I quoted it IN context.

What you are saying is that it doesn't matter how dishonest the advocates of an initiative are, as long as the public can read the text and find out they are lying. That's a totally repugnant position.

No, we shouldn't enforce the single subject rule rigorously; that's just an opportunity for judicial mischief, as your own example illustrates. It's an invitation for judges to strike down statutes they personally disapprove of with ridiculous distinctions.

There's only 2 alternatives. Strict enforcement of the single subject rule, or no initiatives at all. Because dishonest conservatives and business interests (and sometimes liberals as well) use initiatives to accomplish policy objective A without telling the voters, who think they are voting for objective B instead.
5.15.2008 2:58pm