The Morning Report
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Monday, Oct. 23, 2006 | Today in my e-mail inbox I received an urgent message from Councilman Jim Madaffer to tell me that he is opposed to the Fifth Amendment to the Constitution. Well, at least he is opposed to the takings clause which states, “nor shall private property be taken for public use, without just compensation.” To express his displeasure with this particular portion of the Constitution he would like us to all vote No on Proposition 90, the Protect Our Homes ballot initiative.

Proposition 90 is the voters’ reaction to the U.S. Supreme Court’s Kelo decision of last year, which allowed the government to take one’s property and transfer ownership to another individual, as long as it results in an economic gain. This, in the government’s view, means increased tax receipts. Prop. 90 would require the government to use eminent domain strictly for definite public use projects, not for redevelopment projects, in effect reaffirming the Fifth Amendment.

To redevelopment enthusiasts, like Jim Madaffer, Proposition 90 goes too far in protecting the right of citizens to own property. This is because Proposition 90 would also put a property owner “in the same position monetarily…as if the property had never been taken” for a regulatory taking. Such a situation is when the government changes the zoning for a piece of property, thereby restricting its economic use. If Proposition 90 did not address regulatory takings, its passage would be an empty gesture. The government, instead of using eminent domain, could then just change the zoning, restricting the owner’s use of his land, thereby forcing him out with no compensation at all.

In his “eMail Update,” Councilman Madaffer goes further to claim that Proposition 90 is actually a “taxpayer trap,” because its passage could result in the government paying out so much more to eliminate true nuisances and hazards. If one reads the actual language of the proposition (Prop90yes.com/language/), however, it is clear that the ballot measure actually reaffirms the government’s ability to use condemnation in these instances.

In the final analysis, Proposition 90 is California’s reaffirmation of the Fifth Amendment to the Constitution, and Councilman Madaffer likely is not as anti-Fifth Amendment as his email would suggest. For when it comes to brass tacks, if the Councilman ends up on the witness stand in the SEC investigation of city finances, he may invoke the more famous portion of the Fifth Amendment.

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