Klamath Basin Water LaMalfa kelo 090105

(Sacramento)-As a farmer, I hold the value of property ownership and
enjoyment as a paramount right and with the recent Supreme Court decision
occurring in such close proximity to the celebration of our independence 229
years ago, I wonder if those farmers, colonists and settlers that rose up
then would not expect the same of us now, especially those of us elected and
sworn to protect these and our other constitutional rights.

The notion that government can place a higher value on one person's activity
and use of their own assets over someone else's is an elitist and dangerous
enterprise that connotes the totalitarian thinking of a few making value
judgments over the masses. I believe this is contrary to our most
fundamental constitutional rights.

By accepting this ruling, we would all essentially become renters and not
owners of our property. No one is safe in their home or with their
possessions. The abuse of the process of eminent domain allows the
government, all too frequently, to declare a property blighted and take it
on a whim, with little or no justification whatsoever.

The Constitutional Amendment that we are introducing today, ACA 22 and SCA
15, will protect private property owners and homeowners in California from
the arbitrary use of eminent domain. It sets a high standard for
establishing what is a legitimate public use and provides remedies if the
government entity that executes a taking does not follow through with that
stated public use. This is a critical measure that we are hopeful all of our
colleagues in the Legislature will support so that we can place it before
the voters as soon as possible.

I want to thank our colleagues that are joining us today. I also want to
thank Senator McClintock for his leadership on this issue and the Pacific
Legal Foundation for their guidance in helping us craft a measure that will
accomplish this vital protection for all Californians. Thank you.

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The Homeowner & Property Protection Act (Final Version)

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 therefrom; 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.