Eminent Domain Press Conference (A Tom McClintock's column)

The purpose of this press conference is to announce the introduction of SCA 15 and ACA 22 to restore the original property rights protections of the American Bill of Rights that were ripped out of the Constitution by the Kelo decision of the U.S. Supreme Court two weeks ago.

That decision breaks the Social Compact that gives government its legitimacy and opened a new era when the rich and powerful can use government to seize the property of ordinary citizens for private gain. It may now literally take the house of a person it doesn't like and give it to a person that it does like. Stripped of all the sophistries and euphemisms, this is what it comes down to.

It used to be that if a widow didn't want to sell her home to a developer, she didn't have to. That was the end of the matter, unless the developer sent in a bunch of thugs to beat her up. And, of course, government was there to protect her from the thugs. Now government has become the thug.

Nor is this a distant and remote threat. There are 6,000 public agencies in California that now have the power to seize your home, pay you pennies on the dollar for it, and then give it to somebody else for their own personal gain and profit.

Sadly, it now falls upon the states to restore the property rights of their citizens that are no longer protected under the Bill of Rights. SCA 15 and ACA 22 do so for California.

Specifically, these measures prohibit the use of eminent domain for private use under any circumstances. For strictly public uses, they require government to convince a judge that no reasonable alternative to the seizure exists. Government must state the use that the property will be put to and it must own and occupy the land for that specific public use. And it requires the land be returned to the rightful owner if it ceases to be used for that use.

When the legislature returns from recess, it will have a three-day window to place this measure on the ballot for November. If they fail to do so, they will still have a month to put it on the June ballot. Failing that, there is still time to qualify the measure by initiative for the November, 2006 general election ballot.

A bipartisan consensus is developing around the self-evident truth that the most fundamental purpose of government is to protect the individual rights of its citizens. We have introduced the measure with 45 co-authors - more than a third of the state legislature - including 4 Democrats. In Congress, on this issue, Maxine Waters and Richard Pombo are on the same side. The joint author of SCA 15 is Senator Dean Florez, who I would now invite to say a few words.

I have also asked Mohammed Mohanna to tell of his experience. Mr. Mohanna is one of thousands of small business owners and homeowners whose life's work and life's dreams are in jeopardy of government seizure - not because of any crime they have committed; not because their homes and businesses are needed for some over-arching public use - but merely because somebody else wants their property for their own private gain.

Finally, I would like to introduce Tim Sandefur of the Pacific Legal Foundation whose assistance in drafting this legislation was indispensable. Mr. Sandefur is one of the leading experts in the nation on private property rights.

I would also like to acknowledge the presence of Tim Biddle of the Howard Jarvis Taxpayers Association.

The Homeowner & Property Protection Act

A resolution to propose to the people of the State of California an amendment to the Constitution of the State, by amending Section 19 of Article I thereof, relating to eminent domain.

WHEREAS, This measure shall be known and may be cited as “The Homeowner and Property Protection Act”; and

WHEREAS, Eminent domain has been subject to widespread abuse in California, whereby local governmental entities have condemned property and transferred it, by sale, lease, or otherwise, to the control, management, or exploitation of private entities for private use and profit on the theory that generalized public benefits will flow there from; and

WHEREAS, The United States Supreme Court, in Kelo v. City of New London, ___ U.S. ___ (2005), has held that the United States Constitution does not prevent the transfer of property, seized through eminent domain, to private entities for private profit; and

WHEREAS, The rights guaranteed in the California Constitution are not dependent on rights guaranteed under the United States Constitution (Section 24 of Article I of the California Constitution), and the California Constitution should protect the property rights of Californians to a greater degree than does the United States Constitution; nor should the term "public use" in the California Constitution be construed as identical to that phrase as employed in the Fifth Amendment to the United States Constitution; and

WHEREAS, It is the intent of the Legislature that private property shall not be taken or damaged for the use, exploitation, or management of any private party, including, but not limited to, the use, exploitation, or management of property taken or damaged by a corporation or other business entity for private profit, as is currently permitted under the United States Constitution under Kelo v. City of New London, __ U.S. __ (2005); and

WHEREAS, It is not the intent of this amendment to prevent the rental of space in a government building or any other government-owned property, for incidental commercial enterprises, including, but not limited to, gift shops, newsstands, or shoeshine stands; and

Resolved by the Senate, the Assembly concurring, That the Legislature of the State of California at its 2005-06 Regular Session commencing on the sixth day of December 2004, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:

That Section 19 of Article I thereof is amended to read:

SEC. 19. (a) Private property may be taken or damaged for a stated public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Private property may not be taken or damaged for private use.

(b) Private property may be taken by eminent domain only for a stated public use and only upon an independent judicial determination on the evidence that the condemnor has proven that no reasonable alternative exists. Property taken by eminent domain shall be owned and occupied by the condemnor or may be leased only to entities that are regulated by the Public Utilities Commission. All property that is taken by eminent domain shall be used only for the stated public use.

(c) If any property taken through eminent domain after the effective date of this subdivision ceases to be used for the stated public use, the former owner of the property or a beneficiary or an heir, if a beneficiary or heir has been designated for this purpose, shall have the right to reacquire the property for the compensated amount or the fair market value of the property, whichever is less, before the property may be sold or transferred.

(d) The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.

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