February 2006
Feb. 23, 2006
(Distributed to Kansas newspapers Feb. 20, 2006)Then what?
Maybe it’s the solid sons-of-the-soil heritage of Kansans, or maybe it is just “what’s mine is mine” when it comes to property, but there’s apparently a proposed constitutional amendment out there that voters will flock to the polls to approve.
According to a new public opinion poll with a margin of error so small it doesn’t matter, the issue of opposing use of eminent domain to seize Kansans’ property to hand it off to someone who can make better or different or more tax-generating use of it is a sure-fire winner.
The real question for political types, though, is how you use what sounds like a sure-fire proposal to bring not just people but the right people to the polls -- and what they do after they’ve voted to prevent the wing-tip shoed crowd from taking their land and putting a factory or condos or a life-style shopping center on it.
The issue of course sprang to life after the U.S. Supreme Court decision in the Kelo case last summer that allowed a Connecticut town to seize property for an urban redevelopment/business scheme that would probably improve the looks of the city and add to its vitality and tax base.
It propped open the door to what has been happening occasionally but not quietly in Kansas. Some cities and counties have declared that in order to stimulate the economy, a few holdouts in a mass sale of land that would create economic development should be forced to sell their property for the common good of the community.
That poll, done on behalf of the same people who hope to bring you a Taxpayer Bill of Rights, or TABOR, found that 92 percent of 400 registered voters telephoned in January want that eminent domain business for economic development reasons stopped cold in Kansas.
Now, buying at a forced sale -- and that’s what use of eminent domain is, forcing the sale of land for a public purpose -- land for a highway or a pipeline or a railroad or a hospital or school, that’s a different thing. Most people easily reach the conclusion that a highway serves everyone’s interest and that power lines have to go somewhere. It’s easy to see the broad public good from those takings of privately owned land. Hospitals? People apparently lump them into the “public good” category although even a small hospital is a multimillion dollar operation and hospitals have lost a little of that public service majesty that they used to have.
Somewhat surprisingly, the opposition to taking land from one person and selling it to another who may make better economic use of it is strong virtually everywhere in the state. Or, at least that’s what the poll indicates.
But, the real puzzler is what else you can get those voters to approve. The issue splits pretty evenly between Republican and Democratic voters. So there’s not an immediate boost to either party when it comes to what to do with those votes. Urban and rural voters appear from the poll results to be about evenly split, so there’s no big rural-urban divide to capitalize on.
What if a vote on an eminent domain constitutional amendment just passed, and unless a candidate was silly enough to make a lot of noise about opposing it -- as opposed to just taking the political smart road and saying he’ll leave it to the voters -- that just closed the topic?
How do you bootstrap another issue -- say TABOR, for example -- to the eminent domain issue, if the unlikely happened and the Kansas Legislature approved a TABOR question for the ballot? Do you pair eminent domain with a moral issue like cloning that brings out a whole different crowd of voters? Probably not. Why dilute a red-meat moral issue with a bunch of voters who just want to keep a shopping center off their garden patches?
If this is starting to look to you like an issue with no second-hop political advantage, join the crowd.
Feb. 16, 2006
(Distributed to Kansas newspapers Feb. 13, 2006)A well-intentioned legislature
Several factors that most people don’t necessarily link are starting to come together to make big changes in how the state deals with children and sex. Those changes may paint some legislators into a corner this election year because the pieces of the puzzle don’t appear to be linked.
The basic issue is sex by kids under age 16, which most of us would rather not hear about but which comes down to what’s legal and what isn’t and who should report suspected illegal activity and who’s supposed to prosecute it, if it is prosecuted.
First, there’s the basic principle that sex within marriage -- whatever the age -- is legal. Legislators have winked at that principle for years, with the “Romeo and Juliet” statute that allows up to four years’ age difference in the participants in consensual sex without a law being broken. That may be chipped away at if the Legislature passes the bill that prohibits children under age 16 from being married and requires parental or judicial approval for marriages between those 16 and 17.
Atop that marriage minimum age, Attorney General Phill Kline continues to push for health-care and social-services professionals to report to prosecutors suspicions of under-age-16 sex.
Kline has already had just spotty results when he has turned over to local prosecutors information that under-age girls have given birth to babies -- proof positive of by-the-letter-of-the-law illegal activity. A few prosecutors have apparently followed up the information, others apparently haven’t. This is an area where prosecutorial discretion goes under the microscope.
Kline keeps saying he doesn’t make the laws (anymore), that he just enforces them. But unless this is just conservative campaign stuff, you’d expect that Kline would demand that local prosecutors enforce the law, too.
And it hasn’t happened yet, but we’re thinking chances are good that some parent of a 14-year-old or 15-year-old girl is at some point going to tell a county attorney that he wants criminal charges filed against a young man or boy out there who has wronged his daughter, and some local prosecutor is going to be tested for his or her prosecutorial discretion. Anyone else hear the faint sound of ouster petitions being typed up?
State law flatly defines age 16 as the threshold for consenting to most sexual acts, and the age 16 marriage bill essentially outlaws sex for those not old enough to be married. The political problems would seem to abound for most legislators, especially House members who all stand for reelection this year.
Any candidate want a rollcall vote to show up on opposing the age 16 marriage threshold? That’s not a very savvy position on just one aspect of a legislative session that is heavy in sex predator and pedophile legislation.
Gov. Kathleen Sebelius has weighed in on the topic, but she did so in terms of a 13-year-old girl and a 22-year-old male, and while the marriage of that couple wasn’t salutary in preventing the groom’s imprisonment for sex with a minor, the governor’s selection of that case appears to limit political damage to her. She took the easy position and will apparently leave it to the Legislature to figure out the consequences of the proposition.
This might be one of those traps that a well-intentioned legislature wanders into. Nobody is eager for children to get married and receive the protection from sexual exploitation that marriage provides. Nobody likes children engaging in sex. But nobody wants them dragged through court and jailed, either.
This “I just enforce the law” stuff by Kline may wind up spotlighting dozens of local prosecutors and backing the Legislature into a corner it doesn’t want to be backed into in this election year.
Feb. 9, 2006
(Distributed to Kansas newspapers Feb. 6, 2006)Big vs Little
One of the toughest fights of the 2006 legislative session is under way: It’s a balancing act in which “Big Government” and “Big Money” are on one side and “Little People” are on the other.
That’s always a dangerous confrontation. It is more dangerous in an election year.
The issue is eminent domain, the power of a local unit of government to order people who don’t want to sell – or hadn’t thought about it -- their property to allow economic development efforts to proceed.
We’re not talking about traditional uses of eminent domain where there is virtually no question that land can be taken and its owner compensated fairly for a school or a hospital or a power plant or a highway or a utility line. In those cases, the landowners are paid, move off quietly and land is used for a “higher” purpose, commerce or health care or schools or something like that.
What seems to bother people is government stepping in and allowing people’s property to be purchased to make way for a mall or a factory or redevelopment of a neighborhood that will serve a public purpose, maybe create jobs, clean up a blighted neighborhood or become the catalyst for development that will brighten an entire city or county.
Now, people don’t want to have to leave their property just because some smart-alec developer in a nice suit talks the city council or county commission into helping him assemble property for a project. In most of these eco-devo projects, developers buy all the land owners will voluntarily sell. The holdouts who are smack dab in the middle of a project decide “I can stop this whole deal” if developers can’t get their property. Holdouts have managed to spook landowners across the state with the idea that someone is going to force them off their land.
Practically, there’s more hysteria here than is strictly necessary. There are scores of counties where there hasn’t been an eminent domain forced sale of land since the railroads went through and more where only power plants and power lines and pipelines and the occasional highway were the only reason some were forced to sell off parts of their land.
Folks in the country are spooked. Nope, there’s not much chance that a mall or a race track or a housing development is going up in, say, Stanton County out west. But, the fear is that it might happen and the local government might OK such a deal, so there needs to be a lid put on eminent domain anywhere for any purpose.
People have an emotional attachment to their property, of course. Ever since we seized it from the Indians, Americans have cherished property. But it seems that there ought to be some way for mega-developments -- with the potential for a better city or more jobs or a major attraction -- to be built despite a holdout or two, presuming that the holdout controls some relatively small portion of the property being assembled.
Now, what’s the right percentage? Should a small store owner stop a multimillion dollar redevelopment in a blighted area of a downtown?
At some point, and it’s hard to tell where, the issue really comes down to the money that might be paid a holdout for his or her property once the threshold decision is made by local officials on whether the development is in the public interest.
Is it twice the value that appraisers put on it? Is it three or four or 10 or 50 times that value? Somewhere, for areas where there really is a chance that cities and counties can use their U.S. Supreme Court-granted authority to use eminent domain to take property for the good of the community, there’s a “right” number that will be used to satiate the holdouts. Or… there’s a decision by locally elected officials that there’s some extortion going on and it just won’t be tolerated on behalf of the community.
We’ll see where that winds up…
Feb. 2, 2006
(Distributed to Kansas newspapers Jan. 30, 2006)I'll take the red one
Wouldn’t it be nice if Kansans could go pick out a new car, sign the papers and never have to make any of those troublesome monthly payments? I’m thinking a bright red convertible, myself.
There’s one troubling thought, though. If you never had to make a payment, what bank is going to loan you the money for that car…even if the bank took the trouble to prove in court that you owed it the money and the court agreed but was powerless to order you to make the payments.
Anyone out there think that anyone would be making loans for cars anymore?
We doubt it. Bankers might be wild and crazy at their banking conventions but when it comes to making loans, they are dead serious. If a loan goes south, they want their money or whatever you bought with it back. It’s that simple.
That’s a pretty basic deal in the United States and in Kansas. If you lose a court case, you pay damages. That is what courts are for.
Now, what if a court heard a case, decided the winner and the loser couldn’t be required to pay up? That’s when we all have to start paying cash for our cars because bankers will quit lending us money for them.
In the Kansas Legislature this year, there is another run being taken at what is a pretty similar situation. The Kansas Supreme Court determined more than a year ago that the Legislature wasn’t making suitable provision for financing public education. The trial was held and the state lost. And last summer, the Supreme Court, mindful that the Legislature doesn’t have half a billion dollars laying around gathering dust, said that as a start toward straightening things out, the Legislature needed to pony up $143 million in additional money for schools -- who won the case, remember..
The Legislature spent 12 days in Topeka last summer to do that, grumbling all the way, and now a group of conservative legislators want you to amend the Kansas Constitution to make sure they never get handed an invoice by the Supreme Court again.
The procedure is fairly straightforward. You write up a proposal for a constitutional amendment, hold a press conference, try to get two-thirds of the members of the House and Senate to agree to the deal, and then the proposition goes on the ballot for Kansans to vote on in November. So far, the conservative Republicans behind the idea have written the bill and held the press conference.
This gets a little tricky because only the Legislature can appropriate money in state government, and if it does, the money goes out and if it doesn’t, well, it doesn’t. The Legislature likes it that way. If the Legislature didn’t make all the money decisions, who would want to be in the Legislature anyway? It would be a little like you deciding that this month or maybe forever you just aren’t going to spend any money on car payments.
The proposal would change the Kansas Constitution to simply state that the courts can’t order the Legislature to spend any more or shuffle money the Legislature has already appropriated unless the U.S. Constitution demands it.
This plays into the “activist court” business, of course, and most people would believe that a court is “activist” when they lose a case and are ordered to pay damages, or in this case, pony up enough money to make suitable provision for public schools.
You have to wonder what would happen if the Legislature this session decided to spend, say, $100 on additional money for schools and the Supreme Court said that wasn’t enough. The court could, of course, declare the skinny spending bill unconstitutional, but who would miss the $100? Or it could set a figure, but if the Legislature didn’t meet it, well, the court would be powerless to enforce that judgment.
We’ll see if the resolution makes it out of the Legislature and onto the ballot. And then, we’ll see whether we have enough comfortable walking shoes in the closet… just in case the car loan business looks too risky for bankers