California Eminent Domain Alert: The Sham of SCA 12: Positive Liberty, 8/18/05

By Timothy Sandefur
California State Senator Tom McClintock introduced an amendment to the state constitution (SCA 15) to forbid government from using eminent domain to take property from people and give it to other private owners.

Senator Tom Torlakson has introduced a measure (SCA 12) designed to stop McClintock’s bill, by proving an illusion of protection. It’s a fraud.

SCA 12 adds only the following sentence to the state Constitution: “Public use does not include the taking of owner-occupied residential property for private use.”

Now, first of all, Torlakson’s bill would only protect residential property. It would do nothing to protect businesses, like Ahmad Mesdaq’s Gran Havana Cigar Factory in San Diego, a non-blighted, upscale cigar store and coffee shop, which was condemned earlier this year to make way for a hotel. That would still be permitted under Torlakson’s bill. His bill would do nothing to protect farms, or doctor’s offices, or tire shops in Oakland.

Also, Torlakson’s bill would only protect owner-occupied homes. So people in apartment buildings would not be protected — neither their renters nor their owners. Government could still condemn apartment buildings, or rented homes, and build Costcos and Ikeas and Home Depots there.

Finally, Torlakson’s bill doesn’t bother to define the terms “public use” or “private use.” The problem is that the current eminent domain law already says you can’t condemn property for private use. If you asked Justice Stevens, he would say that the Kelo case doesn’t allow takings for private use. The problem is that they have defined “public use” in such a way as to allow private takings.

Torlakson’s SCA 12 is a fraud, designed to fool people into thinking something has been done. It should be stopped.

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