Monday, January 23, 2006

Mass Outrage over Municipal Government? How Convenient!

My proposed headline was "An Unexplained Sudden Frenzy Riles the Right Wing -- But It Makes Sense When You Recognize Who Runs the Federal Government." But the editor's choice works just as well. In the newspaper version, there's a big picture of Bailey's Brake Service atop the column, which is the business that was the subject of the Arizona Court of Appeals opinion in 2003 mentioned in the column. The opinion, Bailey v. Myers, 76 P.3d 898 (Ariz. App. 2003), is available here (as course material for the Real Property class at ASU College of Law) as well as at the link in the column.

Republican lawmakers have to rail at something, so cities are the next target

East Valley Tribune, Jan. 22, 2006

If you’re a city or town in Arizona (or anyplace in America reachable by talk radio), you’re probably wondering why it seems everybody’s so worked up about condemnation. Pinch a state legislator, and a bill to restrict municipalities pops out.

There are many examples of bad municipal actions, part of the larger universe of bad government decisions. Cities aren’t the only governments benefiting the well-connected or wealthy, or ignoring those who don’t make big campaign contributions. Maybe you’ve heard about this Abramoff guy, but apparently he had nothing to do with that Mesa brake shop deal.

The federal government makes bad decisions too, as anyone trying to decipher the new Medicare prescription drug benefit can attest. The Bush administration even started a war to prevent Middle Eastern Islamic radicals from getting nuclear weapons, but it turns out that Iraq had nothing and it’s actually Iran that’s developing the bomb. Iraq, Iran -- that’s the kind of mistake that spell check just won’t catch.


The difference is that when a city wrongly decides to condemn property, a number of checks and balances already exist. First, property owners must get paid just compensation for the land, and if unhappy with the city’s offer, can go to court and get a trial on valuation. Second, property owners can sue to stop the condemnation entirely. I’ve previously written here (Aug. 3, 2003) about a federal court stopping a Missouri municipality from condemning a shopping center for a new Target superstore. And in case anybody forgot, in 2003, the Arizona Court of Appeals stopped Mesa from condemning Randy Bailey's brake shop because the taking didn’t qualify as for a “public use” as required by the state constitution.

But that hasn’t stopped several state legislators, who have made economic development condemnation their near-obsession. Numerous bills are floating around to restrict, both substantively and procedurally, how cities can condemn property. State Sen. Linda Gray withdrew one such bill when, at a committee hearing, the cities and towns didn’t complain enough about it; she figured that if they weren’t upset, the bill didn’t go nearly far enough.

Why all the fuss over condemnation, when courts and existing laws seem well-suited to curbing abuses, and where, if a majority doesn’t like how their city council exercises this power, voters always can throw the bums out? My pet theory is that it’s psychological displacement by ‘wingers.

All the energy they used to spend attacking the federal government, complaining about law enforcement overreach (those “jack-booted thugs”), or invasions of privacy, or deficit spending, or failure to follow regular legislative rules, or unseemly with coziness with campaign contributors and lobbyists, needs a new outlet. They can’t raise any of those complaints now, because it’s the Republicans committing the abuses -- so ‘wingers need to find a different bogeyman, and unfortunately for cities, they’re it.


But it’s nice to know, with the Bush administration asserting the right to ignore laws and expand executive power without any visible limits, and with the GOP Congress making its legacy an explosion of earmarks, ignoring regular order, and exhibiting unprecedented intimacy with lobbyists, that none of those conservative complaints during the last decade had anything to do with principle. Instead, it was all about party, just like term limits (remember those?)

Finally, a correction to last week’s column. Julie Myers, Bush’s recess appointment to head the Border Patrol, actually did have hearings before a Senate committee, but Sen. Carl Levin (D-MI) reportedly put a hold on the confirmation vote. That strikes me as putting the country ahead of politics, unless he wanted to delay the vote until 2006. Anyway, I’m delighted to correct myself, because it turns out that Republicans were perfectly prepared to confirm as head of the Border Patrol someone whose required “law enforcement experience” consisted of working for Independent Counsel Kenneth Starr and the Commerce Department. That’s how seriously the GOP takes border control. I’m delighted to write about Julie Myers, every single chance I get.

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