California Proposition 98 versus California Proposition 99 (2008)

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On the June 3, 2008 ballot in California, voters had a choice between Proposition 98 and Proposition 99.

Both ballot propositions were about reforming eminent domain laws in California. However, each measure approached the issue quite differently.[1][2]

See also: June 3, 2008 California election results

Dueling trojan horses?

What supporters of 98 think is wrong with 99

Supporters of Proposition 98 say that Proposition 99 is a trojan horse initiative intended to fool voters into thinking they are voting for real eminent domain reform, when in fact they are voting for a measure that slightly if at all changes California's current eminent domain situation.[3] Proposition 99 allows apartments, commercial property or rental homes to be taken by government entities from private owners and given to other private owners. This leaves open most of the state's current eminent-domain options. Property rights analyst Timothy Sandefur says, "The fact is that Proposition 99 would not protect anyone in California from eminent domain abuse. It would not apply at all to small businesses, which are the most common victims of eminent domain. It would not protect people living in apartments at all. It would not protect farms, or churches. It would only protect 'owner occupied residences.' And in fact, it would not even protect them, because the small print in the initiative eliminates such protections in almost every case of eminent domain abuse."[4][5]

What supporters of 99 think is wrong with 98

Supporters of Proposition 99 respond that Proposition 98 is a Trojan horse of a different color, intended to fool voters into ending government-imposed rent control in the approximately 100 California cities that impose rent control, under the guise of reforming eminent domain land seizures in the state. What Prop 98 says about rent control is that existing rent controls would stay in force until a tenant moved out. The owner of that property would then (if Prop 98 passes) be able to set a market-based rent for the property whereas, under current law in Los Angeles, Cotati and Santa Monica, the property's rental price would once again be set by a government agency under their rent control provisions once a new tenant moved in.[6][7]

If both measures win more than 50 percent at the ballot box, the provisions of Proposition 99 go into effect, invalidating Proposition 98--only "In the event that this measure receives a greater number of affirmative votes" (quote from the official voter information guide). This is due to a provision SECTION 9 written into the language of Proposition 99, known as a "poison pill" provision. Proposition 98 has no similar provision in its language.

Campaign tactics, analyses and claims

Does the fine print in Proposition 99 undermine protections?

Property rights analyst Timothy Sandefur, who works for the Pacific Legal Foundation, writes that a little-noticed section of Proposition 99 undermines what he regards as the already-minimal protections it provides against city and county governments taking private property from one owner and giving it to another private owner. He writes, "Although the initiative declares that government would not be allowed to 'acquire by eminent domain an owner occupied residence for the purpose of conveying it to a private person,' another section undoes this protection for almost every conceivable case." The other section says that a city can condemn land that includes owner-occupied housing as long as the private owners it conveys the condemned land to includes some government facilities, however minimal. Sanderfur writes, "For example, the Victoria Gardens shopping complex in southern California includes a branch of the local library and a community center next to a multimillion dollar collection of stores. If a city decided to construct such a mall, and to seize owner-occupied homes to do so, Proposition 99 would not apply and the homeowners would not be protected. It would therefore be extremely easy for government officials to organize projects to avoid even the small protections provided by this initiative."[8]

TV ads: Shameful schemes, scams and Baldwin Park

The anti-98 campaign started running a 30-second television advertisement on May 22. The ad says that AARP opposes the measure, and that 98 would harm tenants. "AARP, the nation’s leading senior organization, strongly opposes Proposition 98. Proposition 98 is a deceptive scheme by a few wealthy landlords to eliminate rent control" and then goes on to use the repeat the word "scheme," modifying it with "shameful."In response, Marko Mlikotin, a spokesman for Yes on 98, said that "Proposition 99 is a sham placed on the ballot by politicians and developers to deny Californians private property rights. If they were truly concerned with reforming eminent domain abuse, their first ad would be promoting the need to abolish the abusive practice of allowing government to forcibly seize private property for development interests." [9][10]

The pro-98 campaign is running a TV spot throughout Southern California and in the Central and Northern California Valleys. The ad focuses on Gail Zauss, a homeowner in the Baldwin Park area who talks about losing her home to developers seeking to build a grocery store. The voiceover is "Only Proposition 98 will stop politicians from seizing homes and small businesses and selling them to developers."[11][12]

Proposition 98 supporters file complaint

In early April, the Howard Jarvis Taxpayers Association filed a complaint with the California Fair Political Practices Commission against three major donors to Proposition 99, the League of California Cities, California State Association of Counties and the California Redevelopment Association. The complaint accuses the organizations of "laundering campaign money, failing to disclose the identity of donors and illegally tapping into taxpayer funds."[13]

Jon Coupal, a leader in the pro-Prop 98 campaign, told a newspaper reporter, "We suspect, and have some evidence to support it, that a major developer wants to defeat our measure (Proposition 98) but doesn't want his fingerprints on it, so he's given money to the league under some pretense or another for use in the campaign."

Chris McKenzie, director of the League of Cities, has denied this charge, saying it is "a scurrilous dirty trick intended to discredit the coalition."

The League of California Cities, which so far is the largest financial supporter of Prop 99, is composed primarily of elected officials who make land-use decisions.

Are taxpayers the ultimate source of League of Cities money?

Coupal decries the possibility that the League of Cities and the other two organizations may be taking money they have in their coffers from membership dues paid by cities and counties, and putting that money into the political campaign to defeat Prop 98. This practice is known as taxpayer-funded lobbying. The League denies that any of the money they are putting into political campaigns comes from membership dues saying that, rather, it comes from advertising revenues in their publications and attendance fees at events they hold. Coupal says, "It's implausible that their rent and advertising revenue could produce $4 million."

In response to an investigative report in the May 22 Orange County Register about the source of its political money, a League spokesman said, "...the California Communities money was co-mingled with money from other sources and it was the other sources that funded the political campaign."[14]

The California Fair Political Practices Commission is investigating three different lobbying associations to determine the source of their funding.[15]

Proposition 99 supporters file lawsuit

Proposition 99 supporters filed a lawsuit in February against the California Attorney General alleging that his ballot title for Proposition 98 is in error, because it doesn't mention the impact that Proposition 98 will have on rent control. The presiding California judge refused to change the title but conceded that he would have written it differently to account for the renter provisions.

Making a campaign issue out of donors

Just as Proposition 98 supporters are making an issue out of the fact that the majority of pro-Prop 99 funds come from organizations peopled by municipal elected officials who (opponents say) would prefer the freedom to exercise their current lenient eminent domain perogatives, Proposition 98 opponents have made an issue out of the fact that many donors to Proposition 98 are apartment owners and mobile home part owners, who could benefit from Proposition 98's phase-out of rent control. In late May, the anti-98 forces released a list of 500 individual mobile park and apartment owners who have contributed to the Yes on Proposition 98 campaign, while pro-98 forces continued to raise questions about whether taxpayers are ultimately the source of the donations to the anti-98 campaign from the LLC and other lobbying associations.[16][17][18]

What impact will Prop 98 have on tenants?

The Western Center on Law and Poverty has published an analysis which says that language in Proposition 98 could jeopardize renter protections, including:

  • The fair return of rental deposits
  • Laws that protect seniors and the disabled from drastic rent increases;
  • Laws requring that landlords give tenants ample notice before evictions.

Prevalence of rent control in California

California is one of four states with some local rent control ordinances. Twelve (12) cities statewide that have rent control ordinances, and about 110 mobile home communities which have rent controls in place on their parks. There are about 1.2 million people statewide who live in rent-controlled housing--about 10% of the state's 14 million renters. Their rent-controlled rents stay in effect under Proposition 98, until such time as they vacate a rent-controlled unit. At that time, the rent on the vacated unit would move to a market-based rent; whereas, under current rent control laws in many areas, the apartment stays under rent control when current tenants vacate it.[19][20][21]

Of the California communities that have rent control ordinances in effect, half are in the Bay Area, including about 350,000 people in San Francisco who live in housing affected by rent control. Berkeley and San Jose have rent-controlled apartments, while Alameda County caps rents for mobile home spaces.[22]

Will the National Football League ever return to Los Angeles?

According to one newspaper columnist, that is what is at stake in the battle between Prop 98 and Prop 99.[23]

"But many cities also use their confiscatory powers to take land from one owner and then resell it to another. Without such takings, there would be no Staples Center in downtown Los Angeles (home to the basketball Lakers and Clippers plus the hockey Kings), nor would there be an AT&T Park in San Francisco's China Basin (home of the baseball Giants). Many shopping malls would not exist, nor would some big-box stores."

Disputed impact of Prop 98 on water regulations

Some opponents of Prop 98 have maintained that the initiative could conceivably have the unforeseen result of prohibiting transfers of property under eminent domain or threat of eminent domain that a government agency views as needed for water projects. The largest state water association (Association of California Water Agencies) publicly opposed in October 2007, before the initiative had qualified for the ballot.

Some environment groups, while entertaining concerns about Proposition 98, have said that if it passes they would use it to block water projects they dislike.[24]

Will hurting economy hurt Prop 98?

John Pitney, a professor of politics at Claremont McKenna College, speculates that the mortgage meltdown in California could hurt Proposition 98's chances of passing. Pitney told the Los Angeles Times, "Some former homeowners are joining the ranks of renters, and they might think twice about a proposal that would end rent control."[25]

No on 98 video contest

The anti-98 campaign conducted a "Create Your Own No on 98 TV Ad," announcing Sara Skelton and Chris Hume as their winners on May 23.[26]

Public opinion polls

See also Polls, 2008 ballot measures

The Public Policy Institute of California (PPIC) released a poll in May 2008 that suggested that while Californians were concerned about property rights, they were not convinced that Proposition 98 addressed their concerns.[27] PPIC's March poll showed higher support for 98 than the May poll.[28][29]

Month of Poll In favor Opposed Undecided
May 2008 30% 48% 22%
March 2008 37% 41% 22%

Supporters and opponents

Lists of supporters/opponents

Schwarzenegger announces opposition to 98

In late April, Gov. Arnold Schwarzenegger announced his opposition to Proposition 98, saying, "Eminent domain is an issue worth addressing. However, Proposition 98 would undermine California's ability to improve our infrastructure, including our water delivery and storage." Jon Coupal of the Howard Jarvis Taxpayers Association says that Schwarzenegger's concern that Proposition 98 will impact public infrastructure is based on a flawed legal analysis, because Proposition 98 doesn't prevent units of government from seizing private property when the property will be used for public projects. U.S. Sen. Dianne Feinstein, a Democrat, and former Gov. Pete Wilson, a Republican, have also announced their opposition to Proposition 98. The California Republican Party has endorsed Proposition 98.[30][31][32]

Farm Bureau, others respond to Schwarzenegger

The California Farm Bureau, a 91,000 member farm organization, issued a statement objecting to Schwarzenegger's comments about the impact Prop 98 could have on water projects, saying, "Farm Bureau strongly favors protecting water rights and strongly favors water development, and our support of Proposition 98 fits with both. Proposition 98 was written with a lot of thought and the best legal advice. It will protect property and water rights, while allowing government agencies to use eminent domain for legitimate public works such as water projects, roads and schools."[33][34]

Barbara Boxer controversy

Writing for the Huffington Post, Stephen Elliott criticized U.S. Senator Barbara Boxer for failing to speak out against Proposition 98. Later, he learned that the "No on Prop 98" campaign has a signed statement from Boxer in opposition to 98. However, when he called her office to confirm her position, he was told that she has not taken a position because it falls out of her jurisdiction. Eventually, it was clarified that Boxer does oppose 98.[35][36]

Newspaper endorsements

In favor of 98 and against 99

The Ventura Daily Press on April 22 editorialized in favor of Prop 98 saying it is "the real deal" and "Proposition 99 is backed by the government groups who abuse eminent domain and want to continue the practice."[37] The Record Searchlight in Redding editorialized in favor of 98 and against 99 on May 4, saying, "Two measures on the June 3 ballot deal with eminent domain. One is real reform; the other is a fraud."[38]

Against 98 and for 99

Proposition 98 is proving to be generally unpopular with newspaper editorial boards. Selected papers opposing it include the San Francisco Chronicle, which on May 4 editorialized against Prop 98, saying it is "disingenuous and dangerous," objecting to the phase-out of rent control and saying 98 could "be used to attack myriad laws that restrict land use or protect land, air and water resources."[39] The Santa Cruz Sentinel also came out against Prop 98 on May 4, focusing on rent control. "If opponents of rent control want to bring an end to the process, then present the issue openly and fairly and let the debate begin," they write, urging readers to instead vote for Proposition 99.[40] On May 12, the Los Angeles Times urged a "no" vote on 98, saying that Prop 98 "masquerades as a simple correction to the notorious Kelo ruling, but really carries the long-standing agenda of interests that want to extinguish rent control and block water and air quality laws." The Times encourages its readers to vote "yes" on 99, but they say that it does not go far enough and that further action in the state legislature is needed to prevent Kelo-style private-to-private land transfers.[41]

The Sacramento News & Review editorialized against 98 and for 99 on May 15, calling 98's TV ads "imaginatively deceptive." The Palm Springs Desert Sun said yes to 99 and no to 98 in an editorial on May 20, arguing that 98 is a "wolf in sheep's clothing."[42]

Against both 98 and 99

The Contra Costa Times on May 3 urged its readers to vote against both initiatives, arguing that eminent domain is complex and the state legislature should create a reform package. They write, "Instead of informed debate by lawmakers on the issue of property rights and the many implications of eminent domain reform, we have a few political campaigns that employ hyperbole, questionable assertions and uncertain conclusions."[43] The Marin Independent Journal on May 19 offered an editorial pox on both houses.[44] The Daily Nexus is not a fan of 98 or 99.[45] The Los Angeles Daily News says the state needs eminent domain reform, but neither 98 or 99 fits the bill.[46]

External links


  1. Governments' ability to seize property at stake on June ballot
  2. San Francisco Chronicle, "Eminent domain measures on ballot" March 20, 2008
  3. Los Angeles Times, Don't count on Proposition 99, May 18, 2008
  4. Freespace, The Deep Dishonesty of Prop 99, May 13, 2008
  5. Daily Press, Big Government types and Proposition 99, April 28, 2008
  6. Ventura County Star, "Not eminent domain, but rents and rail lines", April 7, 2008
  7. Eminent domain measures stir up strong feelings
  8. PLF on Eminent Domain, What would Proposition 99 do?, May 9, 2008
  9. PolickerCA, No on 98 hits airwaves with TV spot highlighting senior support, May 23, 2008
  10. AARP says No on 98, YouTube
  11. PolitickerCA, Yes on 98 hits airwaves with new spot focusing on Baldwin Park, May 21, 2008
  12. Los Angeles Times, Analyzing the ads: Prop 98, May 21, 2008
  13. Contra Costa Times, "Activists at odds over fundraising," April 6, 2008
  14. Orange County Register, Public agency, private benefit, May 22, 2008
  15. California Republic, Obscure Public Agency Funding Campaigns To Oppose Private Property Rights (dead link), May 28, 2008
  16. Californians for Property Rights protection, supported by No New Taxes Committee, a Project of the Howard Jarvis Taxpayers Association, and the California Farm Bureau Federation, & co-sponsored by the California Alliance to Protect Property Rights, California Secretary of State Campaign Finance Records
  17. PolitickerCA, Both sides of Proposition 98 exchange fire over funding sources, May 20, 2008
  18. Los Angeles Times, "Proposal aims to undo rent control laws", Jan. 29, 2008
  19. List of California cities with rent control
  20. Proposition 98 would yank protections from the state's 14 million renters
  21. SF Chronicle Open Forum, Proposition 98 and rent control; This abuse of property rights reduces affordable housing, May 27, 2008
  22. Contra Costa Times, Property on the ballot triggers rent-control clash, May 25, 2008
  23. Ventura County Star, "Not eminent domain, but rents and rail lines", April 7, 2008
  24. Capitol Weekly, "Environmental groups may use Jarvis initiative to block water projects" eptember 27, 2007
  25. Los Angeles Times, California voters face dueling measures on home seizure by eminent domain (dead link), April 20, 2008
  26. Winners of the "Create Your Own No on 98 TV Ad" contest
  27. Contra Costa Times, "PPIC poll shows big property rights concern but indecision on Props 98, 99," May 21, 2008
  28. Public Policy Institute of California, "Californians and their Government"
  29. California Progress Report, "California Prop 98 Heading for Rejection by Voters—Rival Prop 99 Has Narrow 8 Point Lead," May 22, 2008 (dead link)
  30. Los Angeles Times, Schwarzenegger opposes Proposition 98; The governor says the measure would restrict the ability to exercise eminent domain. Backers say he is relying on a flawed legal analysis, April 26, 2008
  31. It's a full moon, governor's transformation is complete (dead link), April 29, 2008
  32. San Diego Union Tribune, Schwarzenegger among politicians opposing Proposition 98, April 26, 2008
  33. Imperial Valley News, Farm Bureau Responds to Governor Schwarzenegger Position on Proposition 98, May 13, 2008
  34. San Diego Union-Tribune, Water projects could be thwarted by ballot measure, state memo says, April 25, 2008
  35. Huffington Post, Shame on Barbara Boxer, May 13, 2008
  36. Huffington Post, More on Barbara Boxer and Proposition 98, May 14, 2008
  37. Ventura Daily Press, Eminent domain propositions: only one is the real deal (dead link), April 22, 2008
  38. Record Searchlight, Proposition 98 truly protects property rights, May 4, 2008
  39. San Francisco Chronicle, Defend our cities - vote no on Proposition 98, May 4, 2008
  40. Santa Cruz Sentinel, As We See It: No on Proposition 98; yes on 99, May 4, 2008
  41. Los Angeles Times, No on 98, Yes on 99, May 12, 2008
  42. Desert Sun, Vote for responsible eminent domain, May 20, 2008
  43. Contra Costa Times, Reform eminent domain in Legislature, not by initiative, May 3, 2008
  44. Marin Independent Journal, IJ urges 'no' votes on Props 98 and 99, May 19, 2008
  45. Daily Nexus, The Daily Nexus Opposes Proposition 99 (dead link), May 27, 2008
  46. Los Angeles Daily News, California needs eminent-domain reform, but not Props. 98 or 99, May 26, 2008

Additional reading