California Property Rights Journal

Property Rights attorney Bill Dahlin offers his post-mortem on Prop. 98:

On June 3, 2008, California’s mid-year election process took place.  The early June date, which had historically been utilized as a primary for presidential candidate voting, was changed as of this year so that California’s presidential primary could be held in February, 2008.  Thus, the June 2008 elections concerned only local races, and several statewide propositions.  The primary battleground for this year’s statewide propositions was the debate between Propositions 98 and 99.

Proposition 98 would have dramatically altered how regulatory takings would be viewed in California and would have, potentially, substantially curtailed activities that many municipalities and counties undertake on a routine basis.  That threat to the status quo led to the California League of Cities, and similar groups proposing and qualifying Proposition 99.  Proposition 99 was publicized as the more reasonable and “less radical” revision of eminent domain law. 

Proposition 99, in terms of its “real world” legal effect and impact, is virtually identical to the existing status of eminent domain law in California.  The only real change is that a single family dwelling, owner occupied, may have slightly more protection under Proposition 99 then previously existed.  However, even that conclusion is subject to debate.

The primary thrust of the opposition to Proposition 98 was the phase out of rent control.  That message was sent with all of the radio and print publicity.  The anti-98 publicity and message sent to the public at large was emotional in content and was persuasively delivered.  The publicity gap was also reflected in the fact that the pro-99/anti-98 groups out spent the pro-98 group by almost 2-1.  The raw financial numbers indicate that the pro-99/anti-98 coalition spent close to $12 million.  The pro-98 backers spent approximately $7 million.  The result was a 61/39 voting result with Proposition 99 wining by that margin and Proposition 98 losing by that margin.

What lessons can be learned?  First, if eminent domain is truly the agenda, do not combine it with price control issues.  Rent control has a completely different political component in California than eminent domain.  Second, if you are pressing for a substantive change in the law, you need to very much “put your money where your mouth is.”  The rank and file property owners that would have benefited from the adoption of Proposition 98 clearly did not support it adequately.  The advertising that was effectively used by the anti-98 coalition was never addressed in any coherent or meaningful fashion.  That led to, essentially, an unrebutted message about the ills that would befall people and cities if Proposition 98 was passed.  Similarly, that was no theme or positive messages about the benefits of Proposition 98 that was brought forward. 

The “outrage” of the population at large, about the Kelo v. Connecticut decision may well not have the same fervor in California as other states.  Moreover, the instances of government actions that could provide the context of why Proposition 98 would be beneficial was not publicized in a fashion whereby the public could understand how and when government has overreached in its use of the police power.  More “human interest” stories are needed to demonstrate how the power of eminent domain is abused by actions of local agencies and municipalities.

One final thought.  The “tax revolution” that took place in California in 1978, with the adoption of Proposition 13, followed many years of turmoil about property taxes.  It took a number of battles before Proposition 13 was adopted.  Thirty years later the taxing agencies still hate Proposition 13 and blame it for all economic woes to budgets.

The concepts in Proposition 98 are viewed by many as aggressive.  The next battle needs to be better designed and better financed.  It will, undoubtedly, be another 3-5 years before that battle can realistically be rejoined.  Instances of how eminent domain is abused, which resonate with the population at large, will need to be gathered, correlated and documented.

Whatever one’s viewpoint of the merits of the propositions, the pro 99/anti-98 campaign was better financed and better run.  It was effective.  Unions, AARP, and other entities with perceived public that images favor “ordinary citizens” were the dominant voice in the campaign.  Those groups will continue to exist and exert their influence.  Thus, any ongoing endeavor to protect property rights needs a complete “face lift” in order to achieve success in the future.

Yes, the anti-98 rhetoric was extremely effective fear mongering. I recall the mayor of Los Angeles stating that if 98 were passed, "an avalanche of unfair evictions" would result. (Never mind that anyone currently under rent control would be grandfathered in and not even be affected). I also have a feeling that quite a few renters listening to the ads had no idea how few areas actually even have any form of rent control--and they in fact would not be affected in the slightest.