The Long, Long Arm of Proposition 90

By John Ryskamp

West Coast Hotel v. Parrish (1937), established the Constitutionality of health and welfare regulation in this country. That case said that such regulation was Constitutional as long as it was rationally related to a legitimate government purpose.

Unnoticed by either its proponents or opponents, California's Proposition 90 goes far beyond the usual anti-Kelo reforms which restrict when eminent domain may be used. It even goes beyond “Kelo plus” initiatives, which demand compensation not only for eminent domain takings, but also for land use regulations which reduce the value of real property.

Proposition 90 overthrows the scrutiny regime and establishes an entirely new doctrine: every law maintains an important fact. Proposition 90 does not mention land use regulation, or regulation at all; it casts its net very widely: “government action.”

Section 3, Paragraph 8 of the initiative states:
“Except when taken to protect public health and safety, ‘damage’ to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the downzoning of private property, the elimination of any access to private property, and limitations on the use of private air space. ‘Government action’ shall mean any statute, charter provision, ordinance, resolution, law, rule or regulation.”

The examples provide guidance if the government action relates to real property. But what if it doesn’t? Proposition 90 relates to “private property,” not merely to real property.

Under current law, property under the Fourteenth Amendment is known as “property interests” and is vast indeed. For example, beyond employment the [Supreme] Court [has] found “legitimate entitlements” in a variety of situations….[S]tudents [are accorded] some due process hearing rights prior to suspending them, even for such a short period as ten days….[A cause of action for discrimination is] a property interest….Beyond statutory entitlements, the Court has looked to state decisional law to find that private utilities may not terminate service at will but only for cause, for nonpayment of charges, so that when there was a dispute about payment or the accuracy of charges, due process required the utility to follow procedures to resolve the dispute prior to terminating service.

So, if they lower your unemployment compensation — or end it — is that compensable under Proposition 90? Is an electricity rate increase? Is “education” a property interest, such that suspension is compensable? Is lack of health insurance compensable under Proposition 90? Housing eviction?

Proposition 90 puts power over facts into the hands of individuals, and takes that power out of the hands of the political system. At least in that regard, it is consistent with other anti-Kelo propositions. It is also consistent with American history, in which such facts as freedom of speech were regarded as intrinsic to the human experience and could only be distorted by — and distorting of — government. That’s why they were removed from government. What facts? and, in what ways removed? Those are the questions we are going to have to answer under Proposition 90. But we will be asking and answering them, not the political system. Factual inquiry has replaced government discretion: that is the new equation of Proposition 90. For better or worse, we are on a new Constitutional road.

John Ryskamp: philneo2001@yahoo.com