Page 7 of 8

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.

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Amy Silverman is a two-time winner of the Arizona Press Club’s Journalist of the Year award. Her work has appeared on the radio show This American Life and in the New York Times, the Washington Post, Lenny Letter, and Brain, Child. She’s the co-curator of the live reading series Bar Flies, and a commentator for KJZZ, the NPR affiliate in Phoenix. Silverman is the author of the book My Heart Can’t Even Believe It: A Story of Science, Love, and Down Syndrome (Woodbine House 2016). Follow her on Instagram (@amysilverman), Twitter (@amysilvermanaz), and at amy-silverman.com.