LAND OF THE FREE-FOR-ALL
U.S. Senator Larry Craig, a conservative Republican from Idaho, came to Phoenix a couple of weeks ago to lunch at the Arizona Biltmore and stump for GOP Senate hopeful Jon Kyl.
Kyl's opponent, Democrat Sam Coppersmith, celebrated the Idaho senator's visit by faxing around a newspaper clipping that quotes Craig telling a New York chamber of commerce gathering that "free white human beings" will soon be an endangered species in the business world because of affirmative action.
It's fitting, then, that Craig, a mild, middle-aged white man in a plain, gray suit and rimless glasses, stuck around for an hour after lunch to talk about his favorite constitutional right--indeed, the cause cläbre of many free white human beings--private-property rights. Craig is to the private-property-rights movement what Howard Stern is to shock radio. The senator stood in an alcove and told about a dozen admirers about his activities as the founder of the U.S. Senate's Private Property Caucus. The bipartisan caucus is designed to push guidelines and legislation, at the federal level, to protect Americans' constitutional rights to private property. But on this day, Craig was more interested in what's happening in Arizona, where the nation's first statewide vote on a piece of private-property-rights legislation will take place November 8, in the form of a ballot referendum titled Proposition 300.
The law was passed and signed in 1992, but foes of the legislation rounded up more than 70,000 signatures to place it on the ballot. Simply put, the law calls for the state attorney general to initiate an assessment process in cases in which state government is instituting a new regulation that may be construed as a "taking" of private property not covered by eminent domain.
Craig explains that Mark Killian, the speaker of the Arizona House of Representatives and author of the legislation, has traveled to Washington, D.C., to update him on the referendum's progress. Craig is confident that Arizonans will approve Proposition 300.
A win in Arizona, he tells the group, is "absolutely key, I think, to the overall success of property rights in this country," and an "important signal to Congress," where Craig has tried to get similar legislation passed for years.
"Thank you for leading the way," he tells his rapt Arizona supporters.
Larry Craig isn't the only interloper who's taken note of Proposition 300. GOP heavyweights such as Senator Phil Gramm of Texas and Senate Minority Leader Bob Dole of Kansas both made a point of endorsing the referendum during recent trips to Arizona to campaign for GOP candidates. The Wall Street Journal has been on the phone with Proposition 300 opponents while Jon Margolis, a seasoned Chicago Tribune reporter, came to Phoenix to cover a Proposition 300 debate.
Arizona's politics have become a bellwether for national conservative causes. Perhaps "laboratory" is a more fitting description.
The last time national conservatives looked hungrily at Arizona, school vouchers were the issue. There are clear parallels between the voucher campaign and Proposition 300.
Just last spring, the national spotlight nearly blinded Arizona legislators as they struggled to reform the state's education system. With Governor J. Fife Symington III as their willing host, national leaders of the movement to privatize public education bombarded lawmakers with visits and phone calls. Symington's pilot voucher program would have been the first of its kind in this country, and a huge victory for school-choice leaders such as William Bennett and Lamar Alexander, both former U.S. education secretaries under Republican presidents. The voucher incursion failed at the hand of moderate Republican state Representative Sue Gerard and her merry band of seven naysayers. (Clench-toothed right-wingers in the Arizona State Legislature have dubbed the group the "Sue Nation.")
Although Symington lost his precious vouchers, he basked in the glow of interest from national conservatives who hailed his efforts. It's no accident that a voucher proposal found its way to Arizona's legislature. A battle once waged at the federal level--under approving Republican administrations--has been repackaged by out-of-work school-choice advocates like Bennett and Alexander and sent to states like Arizona, where Republican governors carry on the cause. The same is true for those who champion private-property rights, a concept--like vouchers--that has gotten nowhere in Congress and has been shunned by the Clinton administration. And while Symington was late to sign up as an ardent supporter of property rights, these days there is no stronger backer than the Arizona governor, who comes from a long line of private-property owners. (Ironically, because of his efforts to prevent federal Resolution Trust Corporation lawyers from a "taking" of his assets, Symington, a developer gone bust, no longer has any real estate recorded in his own name.)
In the school-choice debate, the National Education Association is the enemy. In the private-property-rights debate, Killian says, it's "professional environmentalists" from organizations like the Sierra Club.
Symington's voucher proposal was modest--just 2,000 kids would have been given vouchers of $1,500 each. Nothing to get upset about. But voucher foes saw them as a beachhead in the effort to dismantle the public education system.
Similarly, Proposition 300 proponents are promising their referendum will have a minimal impact. It does not offer compensation for government takings, but merely asks the government to "look before it leaps," they say.
Opponents say the extra review process is designed to bog down government and slow regulatory procedures written to protect health and safety.
Most property-rights experts agree that the real dilemmas over takings are precipitated by federal agencies enforcing environmental laws and by cities enforcing zoning laws. Not at the state level, which is all Proposition 300 addresses.
The referendum is so convoluted that no two lawyers have interpreted it the same way, and many have come away with dire predictions about increased costs and bureaucracy. It's so confusing that former senator Barry Goldwater, who initially announced his opposition to it, was convinced to flip-flop at the personal coaxing of Killian and Symington. Foes of the measure say national property-rights leaders are just using states like Arizona as a proving ground to test methodology, determine public support, increase that support and use it to get federal laws changed.
"Arizona is perceived as being the forefront of certain conservative-type causes, and this [private-property-rights movement] plugs right into that," says Grady Gammage Jr., a Phoenix development attorney who strongly opposes Proposition 300--an unusual position for someone in his line of work.
Like vouchers, the property-rights issue is a "litmus test" for conservatives, Gammage says. Especially for conservatives like Fife Symington, who was once known as a moderate but has taken a sharp turn to the right in recent years.
Even so, Gammage doesn't understand Symington's motivation.
"What's he [Symington] going to do?" he asks. "Run for president? Fife Symington? Excuse me! Run for the Senate? What is he looking for? He likes to get written up as one of the best Republican governors, I guess."
If that's the case, the guv should be happy: In August, the conservative National Review gushed, "Fife Symington of Arizona has turned out to be one of the country's best governors." Daniel D. Polsby, a law professor at Northwestern University, hailed Symington on his positions on vouchers, truth in sentencing, tax cuts and "other conservative staples."
The people pushing Proposition 300 have done everything short of plunking a powdered wig on Symington's head to paint their man as the Founding Father type, a man who will be remembered as the savior of our constitutional rights--particularly the Fifth and 14th. Or at least as a notable guy. Proposition 300 backers have compiled two pages of quotes titled "Thoughts on Private Property Rights: History's Perspective," including pontifications from, among others, Cicero, John Locke, Thomas Jefferson, George Washington, Noah Webster, Pope Pius X, Walter Lippmann and--you guessed it--Fife Symington, who, upon signing the bill that would later become Proposition 300, opined: "Private-property rights lie near the source of the liberty under which Americans are free to enjoy the God-given beauty of the Earth. It is the nature of government constantly to close in upon that liberty, to diminish it, to consume it. Indeed, one day the historians may put down our era as one where the gradual intrusion of the public upon the private came to deprive Americans of the liberty that was once the envy of the world. The right to property is a civil right, no less than the rights to freedom of speech and worship, and the rights to due process and equal protection under the law."
The Fifth Amendment to the United States Constitution guarantees the right to own private property. It states that no person shall ". . . be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation." The 14th Amendment reiterates that right, almost verbatim.
Since the late Eighties, a movement as virulent--if less public--as the one designed to protect the Second Amendment right to bear arms has taken aim at federal laws designed to safeguard endangered species, wetlands and water quality. Miners, farmers, ranchers, developers and others who own large hunks of property compose the bulk of the movement, dubbed "Wise Use" by a Washington state man named Ron Arnold. Arnold is viewed with skepticism even by those who have adopted his moniker--he and his associates have been linked to Sun Myung Moon's Unification Church. Arnold has told the media he would like to replace every environmental group with a Wise Use group. Since his pronouncement, a number of Wise Use groups--including People for the West!, which has Arizona members--have been formed.
The birth of the Wise Use movement coincided with the signing in 1988 of President Ronald Reagan's Executive Order No. 12630, which reads in part: "Governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required."
Reagan's "takings" order has been widely criticized. When the order was a few months old, the nonpartisan Congressional Research Service offered the opinion that it "overestimates the likelihood of a taking," that "there appears to be no justification in federal taking jurisprudence for the added demands imposed by the Order on government actions aimed at protecting health and safety," and that the order "has the potential to burden implementation of federal environmental programs."
The U.S. Office of Surface Mining Reclamation and Enforcement proposed a rule in 1991 that would have had the effect of opening national parks, backyards, schoolyards, churchyards and graveyards to strip mining. The justification for the proposal--which was never approved--was Reagan's Executive Order 12630.
In his memoir, Reagan's solicitor general, Charles Fried, wrote that the order's creators, Attorney General Edwin Meese and his underlings in the Justice Department, "had a specific, aggressive and, it seemed to me, quite radical project in mind: To use the takings clause of the Fifth Amendment as a severe brake upon federal and state regulation of business and property. . . . If the government labored under so severe an obligation, there would be, to say the least, much less regulation."
An executive order does not have the power of law. A president can dismiss a predecessor's executive order, or simply ignore it. President Bill Clinton has done the latter, and he did something else that really annoyed folks like Larry Craig.
He appointed Arizona's own Bruce Babbitt to be secretary of the interior. Reagan's first interior secretary, James Watt, is widely regarded as the guy who united environmentalists--in their zeal to oppose him. By supporting limits on grazing, logging and mining, Babbitt has done the same for Wise Use supporters, who tend to be far-flung and represent a myriad of interests, but who are now congealing under national umbrellas such as Stewards of the Land and American Land Rights Association. Mark Killian is on the legal advisory board of such a group, Defenders of Property Rights. The group's national advisory board includes Reagan-era luminaries such as Robert Bork, Edwin Meese III and James Watt. And, of course, Larry Craig.
Craig says he thinks he'll get a measure through Congress next year similar to Arizona's law. He might be right. The Republicans' Contract with America promises compensation for private-property owners, and the issue is getting more attention all the time. Already, on the federal level, there's a dead heat in the environmental power struggle. The private-property activists don't have enough votes to neuter the Endangered Species Act, a law powerful enough to stop development in its tracks. On the other hand, environmentalists lack the ability to make it any more stringent.
Thirty-nine state legislatures have considered "takings" laws; nine have passed them. The versions vary wildly. Florida voters were supposed to consider a takings initiative this fall, but that state's Supreme Court struck it down.
That leaves Arizona. For the most part, property-rights champions have been the same folks who call themselves fiscal conservatives, who battle big government and try to limit regulatory red tape. But most takings legislation would actually increase government by adding another layer of bureaucracy.
In Colorado, self-described fiscal conservative Tony Grampsas, a ten-year veteran of the state's House of Representatives, has killed private-property legislation three years in a row in the House Appropriations Committee, which he chairs.
"If you get away from the emotional issue of it [private-property rights] and you start looking on the basis of what this could really cost . . . you start realizing, hey, this thing could be pretty expensive to the state," he says. Grampsas, a Republican, says he can kill takings legislation again when it comes to his committee, but if it were ever to go before the voters of Colorado, "then it becomes a matter of who has the most juice."
In Arizona, the people who favor Proposition 300 have about twice as much juice as those who oppose it.
As of October 3, Arizonans for Private Property Rights had raised $354,000, with $212,000 left in the bank. On the other side, the Arizonans for Community Protection had taken in $186,000 and spent all but $15,000.
Campaign committees can accept unlimited contributions, and both sides have raked in huge donations. Arizonans for Private Property Rights has taken $100,000 from the Arizona Realtors Association and hunks ranging from $5,000 to $25,000 from assorted homebuilders, farming and ranching organizations.
The opposition took $100,000 from the Grand Canyon chapter of the Sierra Club, $5,000 from the Wilderness Society and about $1,000 from the Grand Canyon Trust.
And on both sides, money has come from out of state. "Pro" contributors include Asarco Inc. in New York ($25,000), which has sizable mining interests in Arizona, and the California Farm Bureau ($500).
"Anti"s include an investor in Aspen, Colorado, a physician in Columbus, Ohio, a lawyer in Kansas City--all of whom contributed $30 or $50--and Bob Fisher, executive vice president and chief financial officer of The Gap in San Francisco, who chipped in $1,000. Campus Greenvote in Boston donated $1,500.
The proponents of Proposition 300 have more money, and they have Mark Killian, honorary chairman of Arizonans for Private Property Rights. Not coincidentally, many of the supporters of Proposition 300 are the same folks who've been donating to Killian's legislative campaigns for years.
As speaker of the House, Killian has a great deal of influence. For one thing, he is the chairman of the Legislative Council, a committee of legislators whose responsibilities include approving a description of each proposition on the statewide ballot. This language, called "Analysis by Legislative Council," is supposed to explain a ballot measure in plain English, and is often touted as the one unbiased interpretation. Voters and journalists rely on it. The analysis is included in the explanatory ballot booklet prepared for voters by the secretary of state.
According to the Legislative Council's deputy director, Dave Thomas, Killian himself wrote practically the entire analysis of Proposition 300.
As the author of Proposition 300, Killian assumes he has the final word on interpretations of the measure. At a Sierra Club meeting last year, Killian answered questions good-naturedly for quite a long time, but got a little nasty toward the end, when a persistent questioner tried to pin him on a specific example of a government taking.
"I don't believe the bill sees it that way, and I'm the author of the bill. All right? 'kay?" Killian asked, his soft twang hardening.
Killian's office at the Capitol is decorated with cowboy art and carpeted in a shade of turquoise not found in nature. On his desk rest a Bible and the Book of Mormon. On his bookshelves, above the Arizona Revised Statutes, are two books by Rush Limbaugh, in front of which sits a statuette of an old-time politician standing on a soapbox.
Mark Killian's ancestors were sent to Arizona in the 1880s by Brigham Young. They settled at St. Johns, and lived in four covered wagons. Decades later, Killian's grandfather, a citrus grower, moved to Mesa. Mark grew up "in town," but spent time on the family farm and summered at the family ranch in Colorado. Today, he lives in Mesa, where he runs his own real estate company.
But it wasn't Killian's personal interest in private property that led him to introduce his first piece of takings legislation in 1989. He wanted to save the state money. One of the largest tax increases in the history of the state had just been approved, Killian recalls, and he was chairing the House Ways and Means Committee.
"[Speaker of the House] Jane Hull said, 'Mark, you've gotta figure out a way to solve these problems without going out and raising taxes.'" About that time, Killian read about Reagan's executive order, and that it was designed to address court judgments against the government in takings cases. Reagan's people had estimated that over a period of years, the federal government had shelled out $167 million in such cases!
Determined to save the State of Arizona, Killian drafted a bill that borrowed heavily from the Reagan executive order. Did he know, at the time, how much Arizona had lost in similar cases?
"No, I didn't at the time," he says.
And he has never found out. To this day, Killian is unable to find a single clear-cut example of a taking in Arizona. He says such cases don't come to light because property owners can't afford to sue.
The bill went down twice before Killian reintroduced it in 1992, with Senator Gus Arzberger, a Democrat and rancher from Willcox, as the primary co-sponsor. By this time, legislatures in Delaware and Washington had already passed takings legislation. The Arizona House Committee on Natural Resources and Agriculture heard testimony from both sides. Those in favor included representatives from the state's cattle growers' association, farm bureau and chamber of commerce.
Those in opposition included state agency heads Ed Fox, director of the Department of Environmental Quality; Betsy Rieke, director of the Department of Water Resources; Dave Schmitt, assistant to the engineer at the Department of Transportation; Gordon Whiting, chairman of the Game and Fish Commission; and Ken Travous, director of Arizona State Parks.
In the end, House Bill 2236 was attached to Senate Bill 1053, a bill titled "State Lands Adjacent to Mines," as a floor amendment, and the whole thing passed.
The bill went up to the Governor's Office. No one knew what to expect. Big business supported it, but Symington's agency heads hated the bill; even the Arizona Republic came out in strong opposition, calling it "a bit of mischief masquerading as protection for property rights." Killian worried that Symington might not sign, simply because the governor never thought the bill would reach his desk and hadn't planned ahead.
Symington did sign, and for a few days, there was speculation that Vice President Dan Quayle had twisted his arm. The governor denied it. Daily reporters cited the takings bill as an example of the governor's shift to the right--which coincided with the arrival of conservative Jay Heiler in the Symington inner circle.
His detractors called it "a 180-degree turn" on Symington's proenvironment stance, but after a while, everyone--including the governor, it seems--forgot that Symington had ever hesitated. After SB 1053 had been placed on the ballot as Proposition 300, Symington wrote, ". . . each of the guarantees against government tyranny in the American Constitution is important. But none is more important than the Fifth Amendment guarantee against the taking of private property without just compensation. . . ."
While the governor spurts rhetoric, his agency heads have clammed up. DEQ's Ed Fox? "He's just not talking about it," says DEQ spokesman John Godec. Ditto for ADOT's Larry Bonine, who has since replaced Charles Cowan (who was extremely critical of the bill), says ADOT spokesman Dan Galvin. Rita Pearson, who in 1992 was the governor's personal adviser on environmental issues and has since taken over at the Department of Water Resources, has announced that she supports Proposition 300. Betsy Rieke, who now works for Babbitt in Washington, D.C., is still opposed.
The Arizona Game and Fish Commission heard three and a half hours of testimony regarding Proposition 300 last Friday, and did not change its 1992 position, says commission chairwoman Beth Woodin. Woodin explains that the commission did not, however, take a formal vote to reaffirm its opposition.
Sara Goertzen, director of the Department of Commerce; Jerry Holt, commissioner of the Department of Real Estate; and M. Jean Hassell, state land commissioner, have come out publicly in support of Proposition 300.
Attorney General Grant Woods is also keeping quiet, according to his office.
It seems that Ken Travous, state parks director, is the only one steadfast in his opposition--and willing to admit it publicly, although he qualifies his statement by saying this is his personal feeling and does not reflect the view of his board, which hasn't come out one way or another. In 1992, Travous testified that the bill wasn't necessary; he still feels that way.
"It's kind of like beating up the bully's little brother. They're mad at the federal government, but they're regulating us," he says of the Proposition 300 supporters.
According to the Arizonans for Community Protection's contributor list, Travous isn't the only state employee who opposes Proposition 300. A manager at the Department of Health Services, a meteorologist at Commerce and a habitat specialist at Game and Fish all made small donations. David Bartlett, chief counsel for the attorney general's civil rights office, forked over $100.
Bartlett, a Tucson Democrat, was the state Senate majority whip at the time the law passed in 1992. "I was opposed to it then and I'm opposed to it now," he says. And he doesn't fear for his job. "The attorney general does not put political pressure on people in the office about their politics." Most supporters of Proposition 300 consider themselves friends of the environment. They have trouble convincing the opposition of that, however. And sometimes they get defensive.
At a recent meeting of the Arizona Travel Industry Association, David Johns represented Arizonans for Private Property Rights while Jeff Bouma spoke for the Arizonans for Community Protection. Unfortunately, as he explained to those assembled, Johns had a conflicting engagement, so he couldn't stick around to debate. He spoke briefly about the general themes of Proposition 300, and on the way out, someone asked what he did for a living. Johns answered that he's a developer and builder, and before another word was said, he spewed, "Don't give me the environmentalist crap." He's won four environmental awards for his developments, Johns said, his face flushed with anger, then left.
(For the record, Bouma is an attorney who represents both sides--the polluters and the pollutees--on environmental issues.)
Then there's Linda McClure, campaign director for Arizonans for Private Property Rights, who was booted from the board of the Arizona Wildlife Federation after she spoke on behalf of Proposition 300 at a realtors' meeting. During that talk, she mentioned her affiliation with the federation as proof that environmentalists do support the referendum. The only problem is, the Arizona Wildlife Federation publicly opposes Proposition 300.
McClure received a terse letter from Thomas J. Dougherty, Western regional staff director for the National Wildlife Federation, who wrote, ". . . please do not impersonate a conservationist when your mission is to disembowel the safeguards for which we've struggled."
She still doesn't understand what she did wrong.
Killian uses his Eagle Scout project--he built a shelter for deer on the family ranch in Colorado--as evidence of his bond with the environment. But the most memorable statement of environmental fondness from a Proposition 300 supporter came from the governor himself, who has sacrificed his own skin for his love of the outdoors. On the occasion of signing SB 1053 into law, Symington wrote to then-Senate president Pete Rios, a Phoenix Democrat: "I am a man of the outdoors. My most contented moments on this Earth will always come casting a fly on a still, blue lake or paddling a canoe miles down a flowing river. I have the carcinoma to prove it."
Then there are the people Killian calls "professional environmentalists"--the ones who actually expect the government to enforce the Endangered Species Act; the ones who oppose measures like Proposition 300. He paints them with a broad brush:
"I've read things that some of the more radical environmentalists have said--a lot of them don't believe in capitalism--they think socialism is the way to go. So I'd have to say, I guess that's where they're coming from," Killian says. Killian eschews radical Wise Users, too. One such group, the Sahara Club, which has denounced homosexual-rights groups, vegetarians, animal-rights activists and the Sierra Club, wrote to its members: "It's much like a burglar breaking into your home, demanding that you give him your TV, VCR, stereo and CD collection. After some argument, he agrees to take only your TV and let the rest of the stuff stay. And, like the burglar who knows a soft touch, the ABC [environmental] group will be back at a later time, making more demands. Asking for more of the desert. Trying to save more of the land from the public, not for the public." Actually, one of Killian's analogies sounds eerily similar: "If we decided that we needed to clothe all the homeless in Phoenix, and Linda Blessing, who's the director of DES [Department of Economic Security], took a van over to Dillard's, pulled up to the door and said, 'I'm taking all the clothes outta here to clothe the homeless; oh, by the way, we're not gonna pay you for 'em. It's a general public purpose. These people aren't clothed, they're cold, you've got winter coming up.' Why, they'd call the police, arrest her for stealing."
Don't get Killian wrong. He's not opposed to cleaning up the environment. Just don't ask the person who owns the property--who's messing it up--to foot the bill.
He says, "What it boils down to is, no one is arguing against the protection of endangered species or the protection of wetlands, but the argument is who should pay."
When he talks about Proposition 300, Mark Killian forgets nonenvironmental organizations that oppose the measure, groups like the Arizona Public Health Association, Arizona Consumers' Council, Arizona Association of University Women, Arizona Preservation Foundation, Arizona Archaeological Council and Arizona Common Cause.
The debate over Symington's vouchers was suffused with questions about the separation of church and state. Should children be allowed to use taxpayer money to pay tuition at a parochial school? Many folks who didn't mind the concept of vouchers did mind that. So they didn't support vouchers.
The same holds true here, where organizations that have little to do with environmental protection strongly oppose Proposition 300. They argue that the bill is so poorly written that it could lead to everything from the destruction of historic buildings to serious threats to public health and safety.
For example, the opposition claims, if the state passed a law decreasing the staff-to-child ratio at day-care centers, a day-care-center operator could claim a government taking had occurred, because he or she would see a decline in revenue. Killian disagrees. "The Fifth Amendment doesn't guarantee you highest and best use of your property," he says.
But David Baron, assistant director of the Arizona Center for Law in the Public Interest, counters, "That's what the [U.S.] Constitution says--he's right! But that's not what this bill says. This proposal says that you have to use the least-restrictive means to regulate."
Proposition 300 includes provisions that state that only the minimum health and safety standard must be met. If a staff-to-child-ratio regulation goes at all beyond the minimum, it could be construed as a taking, Baron believes.
But no one will know until the law goes into effect--if Proposition 300 passes.
Mark Killian is also correct when he says that environmentalists have provided the bulk of the money and the energy that has gone into fighting Proposition 300--including the money and energy that put it on the ballot in the first place. Chief among them has been Joni Bosch, a longtime lobbyist for the Sierra Club who chairs Arizonans for Community Protection. Killian and Bosch have been debating SB 1053 for years. Neither has nice things to say about the other. They accuse one another of lying, and Killian drives Bosch crazy by continually mispronouncing her first name--it's pronounced "Johnny"; he says "Joanie."
Bosch and Killian on costs:
How much will Proposition 300 cost to implement? Killian points to Utah, where costs of that state's takings bill are predicted to be negligible. Bosch refers to Wisconsin, where bureaucrats estimated it would cost $10 million per year. Utah's measure has only been in effect for about a year. Wisconsin's was defeated.
Killian likes to refer to a fiscal note prepared by the Joint Legislative Budget Committee, which looked at the departments of Game and Fish, Environmental Quality and Water Resources and estimated that costs associated with enforcing Proposition 300 could be as little as nothing or as high as $457,000 per year.
Bosch points out that JLBC left out a number of agencies, including the Department of Transportation, whose former director wrote, "the cost of this provision could reach into the hundreds of millions of dollars."
Killian counters that ADOT deals with eminent domain, which is not covered in the bill. But in 1992, ADOT's Dave Schmitt testified that only 5 percent of the property his department acquires is through eminent domain.
Bosch and Killian on civil rights:
Killian: "What we're talking about here is protecting people's civil rights, 'kay? Your property rights are part of your civil rights. Always have been, always will be. Even the Supreme Court says that. . . . It's either all or none." Bosch: "He's wrapping himself in the cloak of the civil rights movement that went on for 200 years that has documented abuses, violations and outrages against a whole segment of our population that didn't have any power structure behind them to fix it. And they [the Proposition 300 proponents] can't come up with one good example of a constitutional violation. . . . I mean, sure, it's a civil right, but it ain't the same thing as the civil rights movement."
Bosch and Killian (and Baron) on examples of takings: Now things really get hot. Killian has a number of great examples, situations in which property owners have suffered financial losses as the result of government restrictions. As Bosch points out, all of the examples involve either federal cases or cases in other states.
Proponents have tried to argue that Proposition 300 would have prevented the State of Arizona from attempting to claim title to land along riverbeds that had been controlled by private citizens for years. But the skirmish over riverbeds has only served to further complicate an already Byzantine debate.
Baron criticizes Killian, et al., for producing television commercials that claim Proposition 300 would have allowed people to keep their land--particularly since the state has decided not to pursue its claim to the land in the first place.
And one other small point: No one's land was taken.
Baron, who has worked extensively on this issue, says, "The riverbed issue is a title dispute [rather than a regulatory taking] . . . and this legislation does not affect title disputes."
McClure claims the issue of who owns property along rivers has not been resolved. Besides, she says, "Whether it's a damn title issue or not, if the state's gonna take her [the woman who appears in the commercial] land from her, don't you think she ought to be compensated for it?"
Actually, no. If it is determined that the woman has title to the land, the state would not try to take it. And if she does not have title, she never owned it in the first place.
For a while, it appeared as if Democratic gubernatorial candidate Eddie Basha would take a loud stand against Proposition 300. His handlers insist he's a "no vote," but piped down on the subject when they realized that Basha and private-property rights have something in common: Both appeal to rural Arizonans.
Basha campaign manager Rick DeGraw says his candidate isn't campaigning one way or another, and the campaign released a position paper on takings: If elected, Basha promises to issue an executive order with regard to private-property rights, and vows to push for legislation that allows property owners who win in court to recover legal costs and expenses in litigation with the state.
The supposition is that by being a strong advocate of Proposition 300, Symington could win some votes away from Basha in the rural counties. But for now, it's just a supposition, because no one's released any polling numbers on Proposition 300, and few know enough to even talk about it.
"I really don't know very much about it, to tell you the truth. I really don't," says Republican pollster Bruce Merrill, who conducted polling on the tort-reform and tobacco-tax propositions but has no plans to do so with Proposition 300.
Traditionally, ballot propositions don't sway gubernatorial elections, Merrill says. "A candidate would really have to come out and personally support it or not support it in a very personal way." (Remember, though: The Arizona Classroom Improvement Initiative--often referred to as ACE--is considered to have played a role in the 1990 gubernatorial race between Symington and Democrat Terry Goddard. Symington opposed the measure, which would have increased education spending by $100 per pupil for each of the next ten years. Goddard supported ACE. Both made television commercials about it. ACE went down, and so, in the end, did Goddard.)
Proposition 300 is difficult to understand, which may lead to its defeat. But those three magic words, private-property rights, appeal to a lot of folks. Grady Gammage Jr. knows that.
"No amount of explanation about how badly written it is, about the unintended consequences of it, about the fact that it may well slow down development, not help development, about the fact that it may grind certain areas of government to a halt, about the fact that it's unnecessary--no amount of logic gets past that, once people buy into this leap of faith that we need to punish bureaucrats and environmentalists and this is the way to do it," he says.
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