Judges, not voters, to decide Props. 105, 104
 
February 11, 2004
 
By Art Thomason
 
 
The Arizona Republic
 
Phoenix, Arizona
 
 
To submit a Letter to the Editor: western@arizonarepublic.com
 
It started with Mesa's redevelopment plans to uproot a local brake shop and its bearded, iron-willed owner.

It was transformed into a rallying cry for property-rights activists when Arizona's Supreme Court slammed the brakes on the city's misadventure.

Yet, what is touted as the final turn in this history-setting journey is supposed to be decided by Mesa voters March 9.

But it won't be. No matter what voters do.

The outcome will be a highlight in America's continuing love affair with direct democracy, also known as popular democracy or government by citizen-initiated ballot measures.

Initiatives that are ultimately decided by judges, not voters.

One of two such items that Mesa's electorate will see is Proposition 105, a measure that would restrict the City Council's use of eminent domain. The other, Proposition 104, would require voters to approve public projects with a price tag over $1.5 million. I'll get to that one later.
For starters, there is an apparent problem with 105.
 
The power of eminent domain, Mesa's authority to seize private property for the public good, is delegated by the state exclusively to the city, not to the voters.

And state law appears to make it clear that nobody can limit that power or amend it in any other way unless the Legislature approves.

The group primarily responsible for the ballot propositions, Thwarting Abuse of Power and Spending, or TAPS, doesn't see it that way.

"If feel really confident that we're on firm legal ground, spokeswoman Jan Hibbard said after being reminded that the measure likely won't pass legal muster. Or in other words, it would head directly to the courts if passed by voters.

But she also acknowledged that her opinion is based, in part, on an affirmative review of the proposition by the Institute for Justice. The institute's Web site boasts that it is "the nation's premier libertarian public interest law firm."

A more reasonable analysis of Arizona law c! omes from Mesa's city attorney, Debbie Spinner. She said the statutes preempt the citizen's initiative from restraining the city's use of eminent domain.

If Spinner's conclusions are perceived as biased because she works for the city, a reading of the law she cites should cool such reservations.

Arizona Revised Statute 36-1474(3) states that "no statutory provision with respect to the acquisition, clearance or disposition of property by public bodies shall restrict a municipality in these functions with respect to a redevelopment project, unless the Legislature specifically so states."

Finding case law to support her position was not as easy. Despite more than a decade's worth of uproar over the issue of eminent domain vs. property rights, there is no reported Arizona case law dealing specifically with preempting a city's eminent domain power, Spinner noted.

But in other states she found several cases right on point.
 
Among them was a 1953 decision by the District Court of Appeals in California when it was asked whether "the people of a municipality (may) abrogate the right of eminent domain, or is that right a matter of statewide concern."

The court's answer: "The right of eminent domain is a matter of statewide concern and being such cannot be abrogated by the people of a municipality. A city has no inherent power of eminent domain. It exercises it only because it's authorized by the state Legislature."

California, of course, has long been the leader in the citizen ballot-initiative craze, particularly since 1978 with the passage of Proposition 13.

And like its western neighbor, Arizona is one of 24 states that gives people the power to refer specific legislation to the ballot by collecting signatures on a petition.

That power, however, is not as formidable as it seems in view of the passage rate of such measures, at least on statewide ballots.

S! ince Oregon began the initiative process in 1904, only 41 percent of citizen-launched initiatives have been approved by voters, according to a review by the University of Southern California's Initiative & Referendum Institute.

Similar data with respect to the 90 percent of American cities that have some form of referendum process are not available.

For Mesa voters, Proposition 104 needs less analysis than Prop 105 to conclude that it's a waste of time.

Projects that cost more than $1.5 million in today's economy could include municipal swimming pools and major amenities for parks, including tennis courts and baseball diamonds.

But who knows what direct democracy -- [also known as] talk-radio government -- will deliver next.