On the June 3, 2008 ballot in California, voters will have their choice between Proposition 98 and Proposition 99.

Both ballot propositions are about eminent domain reform. However, each measure approaches the issue quite differently.[1],[2]

Dueling trojan horses?
Supporters of Proposition 98 say that Proposition 99 is a trojan horse initiative intended to fool voters into thinking they are voting for real eminent domain reform, when in fact Prop. 99 does little to inhibit California cities and counties from seizing property from one private owner and giving it to another private owner. Prop 99 forbids state and local government from using eminent domain to acquire an owner-occupied residence and then turn it over to a private person or business. However, Prop. 99 allows apartments, commercial property or rental homes to be taken by government entities from private owners and given to other private owners. This leaves open most of the state's current eminent-domain options. Property rights analyst Timothy Sandefur says, "The fact is that Prop. 99 would not protect anyone in California from eminent domain abuse. It would not apply at all to small businesses, which are the most common victims of eminent domain. It would not protect people living in apartments at all. It would not protect farms, or churches. It would only protect 'owner occupied residences.' And in fact, it would not even protect them, because the small print in the initiative eliminates such protections in almost every case of eminent domain abuse."[3],[4]

Supporters of Proposition 99 respond that Proposition 98 is a Trojan horse of a different color, intended to fool voters into ending government-imposed rent control in the approximately 100 California cities that impose rent control, under the guise of reforming eminent domain land seizures in the state. What Prop 98 says about rent control is that existing rent controls would stay in force until a tenant moved out. The owner of thait property would then (if Prop 98 passes) be able to set a market-based rent for the property whereas, under current law in San Francisco, Los Angeles, Cotati and Santa Monica, the property's rental price would once again be set by a government agency under their rent control provisions once a new tenant moved in.[5],[6]

If both measures win more than 50 percent at the ballot box, the provisions of Prop. 99 go into effect, invalidating Prop. 98--only "In the event that this measure recieves a greater number of affirmative votes" (quote from the official voter information guide). This is due to a provision SECTION 9 written into the language of Prop. 99, known as a "poison pill" provision. Prop. 98 has no similar provision in its language.

Campaign tactics, analyses and claims
Does the fine print in Prop. 99 undermine protections?
Property rights analyst Timothy Sandefur, who works for the Pacific Legal Foundation, writes that a little-noticed section of Proposition 99 undermines what he regards as the already-minimal protections it provides against city and county governments taking private property from one owner and giving it to another private owner. He writes, "Although the initiative declares that government would not be allowed to 'acquire by eminent domain an owner occupied residence for the purpose of conveying it to a private person,' another section undoes this protection for almost every conceivable case." The other section says that a city can condemn land that includes owner-occupied housing as long as the private owners it conveys the condemned land to includes some government facilities, however minimal. Sanderfur writes, "For example, the Victoria Gardens shopping complex in southern California includes a branch of the local library and a community center next to a multimillion dollar collection of stores. If a city decided to construct such a mall, and to seize owner-occupied homes to do so, Prop. 99 would not apply and the homeowners would not be protected. It would therefore be extremely easy for government officials to organize projects to avoid even the small protections provided by this initiative."[7]

Proposition 98 supporters file complaint

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In early April, the Howard Jarvis Taxpayers Association filed a complaint with the California Fair Political Practices Commission against three major donors to Proposition 99, the League of California Cities, California State Association of Counties and the California Redevelopment Association. The complaint accuses the organizations of "laundering campaign money, failing to disclose the identity of donors and illegally tapping into taxpayer funds."[8]

Jon Coupal, a leader in the pro-Prop 98 campaign, told a newspaper reporter, "We suspect, and have some evidence to support it, that a major developer wants to defeat our measure (Proposition 98) but doesn't want his fingerprints on it, so he's given money to the league under some pretense or another for use in the campaign."

Chris McKenzie, director of the League of Cities, has denied this charge, saying it is "a scurrilous dirty trick intended to discredit the coalition".

The League of California Cities, which so far is the largest financial supporter of Prop 99, is composed primarily of elected officials who make land-use decisions.

Are taxpayers the ultimate source of League of Cities money?

Coupal decries the possibility that the League of Cities and the other two organizations may be taking money they have in their coffers from membership dues paid by cities and counties, and putting that money into the political campaign to defeat Prop 98. This practice is known as taxpayer-funded lobbying. The League denies that any of the money they are putting into political campaigns comes from membership dues saying that, rather, it comes from advertising revenues in their publications and attendance fees at events they hold.

Coupal says, "It's implausible that their rent and advertising revenue could produce $4 million."
It will be up to the California Fair Political Practices Commission to investigate and render a verdict.

Proposition 99 supporters file unsuccessful lawsuit

To hammer home the messaging strategy they feel will be most effective with California voters, Proposition 99 supporters filed a lawsuit in February against the California Attorney General alleging that his ballot title for Proposition 98 is in error, because it doesn't mention the impact that Proposition 98 will have on rent control. A California judge threw out this lawsuit.

Making a campaign issue out of donors
Just as Proposition 98 supporters are making an issue out of the fact that the majority of pro-Prop 99 funds come from organizations peopled by municipal elected officials who (opponents say) would prefer the freedom to exercise their current lenient eminent domain perogatives, Proposition 98 opponents have made an issue out of the fact that many donors to Proposition 98 are apartment owners and mobile home part owners, who could benefit from Prop. 98's phase-out of rent control.[9].

A Los Angeles Times story highlighted this aspect of Prop. 98, and interviewed several people who could potentially be affected if Prop. 98 were to pass and rent control is phased out. [10]
What impact will Prop 98 have on tenants?

The Western Center on Law and Poverty has published an analysis which says that language in Proposition 98 could jeopardize renter protections, including:

The fair return of rental deposits
Laws that protect seniors and the disabled from drastic rent increases;
Laws requring that landlords give tenants ample notice before evictions.

Prevalence of rent control in California

There are 12 cities statewide that have rent control ordinances, and about 110 mobile home communities which have rent controls in place on their parks. Overall, there are about 1.2 million people statewide who live in rent-controlled housing. Their rent-controlled rents stay in effect under Proposition 98, until such time as they vacate a rent-controlled unit. At that time, the rent on the vacated unit would move to a market-based rent; whereas, under current rent control laws in many areas, the apartment stays under rent control when current tenants vacate it.

350,000 people in San Francisco live in housing affected by rent control.

Will the National Football League ever return to Los Angeles?
According to one newspaper columnist, that is what is at stake in the battle between Prop 98 and Prop 99.[11]
"But many cities also use their confiscatory powers to take land from one owner and then resell it to another. Without such takings, there would be no Staples Center in downtown Los Angeles (home to the basketball Lakers and Clippers plus the hockey Kings), nor would there be an AT&T Park in San Francisco's China Basin (home of the baseball Giants). Many shopping malls would not exist, nor would some big-box stores."

Disputed impact of Prop 98 on water regulations
Some opponents of Prop 98 have maintained that the initiative could conceivably have the unforeseen result of prohibiting transfers of property under eminent domain or threat of eminent domain that a government agency views as needed for water projects.
Some environment groups, while entertaining concerns about Proposition 98, have said that if it passes they would use it to block water projects they dislike.[12]
Will hurting economy hurt Prop 98?
John Pitney, a professor of politics at Claremont McKenna College, speculates that the mortgage meltdown in California could hurt Prop. 98's chances of passing. Pitney told the Los Angeles Times, "Some former homeowners are joining the ranks of renters, and they might think twice about a proposal that would end rent control."[13]
Poll results
The Public Policy Institute of California released a poll in April 2008[14] with these results:
71% of California's likely voters believes that California's current eminent domain laws need major or minor changes.
53% of likely voters believe rent control is a good thing (39% think it is bad).
37% of likely voters are currently planning to vote for Prop 98, and 41% are planning to vote against it, with 22% undecided.
Whereas, 53% of likely voters plan to vote for Prop. 99.
Supporters and opponents
Lists of supporters/opponents
List of groups opposing Proposition 98
List of California Proposition 98 supporters

Schwarzenegger announces opposition to 98
In late April, Gov. Arnold Schwarzenegger announced his opposition to Prop. 98, saying, "Eminent domain is an issue worth addressing. However, Proposition 98 would undermine California's ability to improve our infrastructure, including our water delivery and storage." Jon Coupal of the Howard Jarvis Taxpayers Association says that Schwarzenegger's concern that Prop. 98 will impact public infrastructure is based on a flawed legal analysis, because Prop. 98 doesn't prevent units of government from seizing private property when the property will be used for public projects. U.S. Sen. Dianne Feinstein, a Democrat, and former Gov. Pete Wilson, a Republican, have also announced their opposition to Prop. 98. The California Republican Party has endorsed Prop. 98.[15],[16],[17]

[edit] Farm Bureau, others respond to Schwarzenegger

The California Farm Bureau, a 91,000 member farm organization, issued a statement objecting to Schwarzenegger's comments about the impact Prop 98 could have on water projects, saying, "Farm Bureau strongly favors protecting water rights and strongly favors water development, and our support of Proposition 98 fits with both. Proposition 98 was written with a lot of thought and the best legal advice. It will protect property and water rights, while allowing government agencies to use eminent domain for legitimate public works such as water projects, roads and schools."[18],[19]

Barbara Boxer controversy
Writing for the Huffington Post, Stephen Elliott criticized U.S. Senator Barbara Boxer for failing to speak out against Prop. 98. Later, he learned that the "No on Prop 98" campaign has a signed statement from Boxer in opposition to 98. However, when he called her office to confirm her position, he was told that she has not taken a position because it falls out of her jurisdiction.
Eventually, it was clarified that Boxer does oppose 98.[20],[21]

Newspaper endorsements

In favor of 98 and against 99

The Ventura Daily Press on April 22 editorialized in favor of Prop 98 saying it is "the real deal" and "Prop. 99 is backed by the government groups who abuse eminent domain and want to continue the practice".[22] The Record Searchlight in Redding editorialized in favor of 98 and against 99 on May 4, saying, "Two measures on the June 3 ballot deal with eminent domain. One is real reform; the other is a fraud."[23]

Against 98 and for 99

The San Francisco Chronicle on May 4 editorialized against Prop 98, saying it is "disingenuous and dangerous", objecting to the phase-out of rent control and saying 98 could "be used to attack myriad laws that restrict land use or protect land, air and water resources".[24] The Santa Cruz Sentinel also came out against Prop 98 on May 4, focusing on rent control. "If opponents of rent control want to bring an end to the process, then present the issue openly and fairly and let the debate begin," they write, urging readers to instead vote for Prop. 99.[25] On May 12, the Los Angeles Times urged a "no" vote on 98, saying that Prop 98 "masquerades as a simple correction to the notorious Kelo ruling, but really carries the long-standing agenda of interests that want to extinguish rent control and block water and air quality laws." The Times encourages its readers to vote "yes" on 99, but they say that it does not go far enough and that further action in the state legislature is needed to prevent Kelo-style private-to-private land transfers.[26] The Sacramento News & Review editorialized against 98 and for 99 on May 15, calling 98's TV ads "imaginatively deceptive".

Against both 98 and 99 The Contra Costa Times on May 3 urged its readers to vote against both initiatives, arguing that eminent domain is complex and the state legislature should create a reform package. They write, "Instead of informed debate by lawmakers on the issue of property rights and the many implications of eminent domain reform, we have a few political campaigns that employ hyperbole, questionable assertions and uncertain conclusions."[27]