Property Frights

Why property rights initiatives are losing at the polls

Ed Carson from the May 1996 issue

(Page 4 of 4)

How could property rights supporters have drafted an initiative that Carlson says "became a millstone around the necks of its supporters"? Rudolph, who helped write the state's term limits initiative that passed in 1992, says that too often "when people get together to draft an initiative they only see the virtue of their side and no one tries to pick it apart." In the legislative process, confusing or unpopular provisions in a bill can be clarified, modified, or removed at any point until it's signed into law. But an initiative's language is frozen once it's filed, and that includes initiatives to the legislature. By the time Initiative 164/Referendum 48's "problem areas" were identified, it was too late to change anything.

Because of the 1994 elections, property rights had far more supporters in the legislature than Initiative 164's backers had anticipated. Legislators could have drafted a narrower and less-ambiguous bill, but ironically it would have had less chance of becoming law than the flawed 164. A property rights bill, unlike the initiative to the legislature, would have required Democratic Gov. Mike Lowry's signature, and he would have vetoed it. So legislators passed 164, but not before Majority Leader Foreman and Rep. Mike Padden engaged in a colloquy--a scripted exchange--intended to clarify what the legislature believed the initiative would and would not do. The legislators hoped the courts would consider that interpretation when they determined the measure's scope.

But arguing that the scope of Referendum 48 probably wouldn't wipe out zoning and probably wasn't retroactive--after all, no one could know for sure until it became law--didn't play well with the voters. "I believe the courts would have handled it and come up with the correct interpretation, but that's not going to cut it in an initiative campaign," says law professor Rudolph.

Property rights supporters looking at the results from Washington should be careful not to blame their defeat entirely on bad drafting, however. The Arizona bill was technically sound, and it was trounced by the same margin and lost in many rural areas of the state. Working on a more modest scale, however, activists have made gains even in those states. Arizona enacted a limited bill in 1995 that codifies the 1994 Dolan Supreme Court decision, which ruled that governments cannot force individuals to give up property rights in exchange for other rights without compensation.

In Washington state, Richard Sanders, a veteran property rights lawyer, was elected to the state Supreme Court. Jeanette Burrage, former executive director of the Northwest Legal Foundation, was elected to the King County Superior Court. Voters in Whatcom County approved a "mini 48" backed by CLUE, adding property rights language to the county charter. The state House has passed a bill this session known as "48 lite" or "48 done right," but no one gives the bill any chance of becoming law this year. Supporters are hoping a new, pro-property rights governor will be elected this fall.

Nationally, federal takings legislation remains stalled and congressional Republicans are rethinking their strategy for the entire environmental reform agenda. Referendum 48's defeat has dampened enthusiasm for property rights initiatives in other states. However, 17 states passed some takings legislation in 1995. Florida, Louisiana, Mississippi, and Texas enacted laws with compensation provisions, though none as sweeping as Washington's would have been.

Fairness to Landowners' Riegle says activists will continue to focus on legislative efforts. But property rights organizations are strongest in the West, where virtually all of the states have an initiative and referendum process. After their victories in Arizona and Washington, property rights opponents in those other states are sure to challenge any major takings measure. So in the end property rights forces will have to face voters directly in many cases.

"They say conservatives are liberals who get mugged. Maybe more rural people need for it to happen to them to be convinced," Riegle says. That might help in rural areas, but property rights activists cannot win any statewide initiative without significant support from urban and suburban areas. Until they can solve this electoral question, they aren't going to like the voters' answer.

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