Cloward and Piven takes on CO private property

Since 1876, the Colorado Constitution protected Colorado citizens from uncompensated property takings by the State of Colorado.

CONSTITUTION OF THE STATE OF COLORADO, ARTICLE II BILL OF RIGHTS – Colo. Const. Art. II, Section 15 (2013)
Section 15. TAKING PROPERTY FOR PUBLIC USE – COMPENSATION, HOW ASCERTAINED
Private property shall not be taken or damaged, for public or private use, without just compensation. Such compensation shall be ascertained by a board of commissioners, of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law, and until the same shall be paid to the owner, or into court for the owner, the property shall not be needlessly disturbed, or the proprietary rights of the owner therein divested; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.
HISTORY: SOURCE: Entire article added, effective August 1, 1876, see L. 1877, p. 30.

As a judicial question, this right has been extensively litigated over the years.  A few of the more interesting findings –

• SECTION AFFORDS GREATER PROTECTION THAN FEDERAL CONSTITUTION. This section affords an aggrieved property owner a greater measure of protection than does the constitution of the United States. The fifth amendment of the United States Constitution requires compensation only where there has been an actual taking. The Colorado Constitution, however, provides for compensation where private property has been taken or damaged. Mosher v. City of Boulder, 225 F. Supp. 32 (D. Colo. 1964).
• PURPOSE OF THIS SECTION of the constitution is to provide a remedy in damages for injury to property, not common to the public, inflicted by the state or one of its political subdivisions; and this section is not limited in application to condemnation proceedings. Srb v. Bd. of County Comm’rs, 43 Colo. App. 14, 601 P.2d 1082 (1979).
• IT MARKS BOUNDARY BEYOND WHICH PEOPLE HAVE FORBIDDEN LAWMAKERS TO PASS and have commanded their courts to hold any such passage illegal. How inviolable that constitutional inhibition is, is demonstrated by the fact that the supreme court once inadvertently permitted its protection to be threatened (North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915)), but at the first opportunity overruled the dangerous precedent and returned to the solid ground of strict construction. Bd. of Comm’rs v. Adler, 69 Colo. 290, 194 P. 621 (1920); San Luis Valley Irrigation Dist. v. Noffsinger, 85 Colo. 202, 274 P. 827 (1929).

These findings and many more may be read at the free reference site Colorado Legal Resources.

The Colorado Constitution was 20 years ahead of the U.S. Supreme Court’s incorporation of the 5th Am. Takings Clause under the 14th Am., which extended this limitation on Federal power to also limit all States’ powers.

In 2005 the Kelo decision expanded the range of acceptable reasoning a government could use to take private property under the 5th Am.

An eminent domain action requires that the government’s taking of property be for a “public use”. A public use is generally one which confers some benefit or advantage to the public. The term does not necessarily imply — and is not confined to — actual “use” by the public. Moreover, the purported benefit to be derived from the taking of property need not be available to the entire public; it may benefit a smaller sector of members of the public in a particular locality, i.e. a subdivision of the general public. In other words, it is not necessary that the intended users be all members of the public; rather, it is the purpose for the taking that must be for the public, and not for the benefit of any particular individuals.

The use (purpose) must be a needed one, which cannot be surrendered without obvious general loss or inconvenience. However, the parameters of such needed public use move along a spectrum, and defy absolute definition because of factors such as changing needs of society, increases in population, and developing modes of transportation and communications.

In Kelo v. City of New Landen (2005), the U.S. Supreme Court was called upon to determine whether that changing parameter was broad enough to include for-profit development of real estate which would ostensibly result in needed economic growth for the community. In a decision that surprised many, the Court agreed.
http://realestate.findlaw.com/land-use-laws/eminent-domain-public-use-requirement.html

Now come the Left to Colorado, nationally funded [see Wolves Among Us and Fractivist Laid Bare], promoting amendments to the Colorado Constitution to radically change the definition and scope of our private property.  Radical change has apparently called for a radical strategy.

A Cloward and Piven strategy –

• “[W]ould produce bureaucratic disruption. . .and fiscal disruption in local and state governments” that would “deepen existing divisions among. . . [everyone]. . .to advance a federal solution. . .that would override local. . .failures, local class and. . .conflicts and local revenue dilemmas.”
• “[P]roposed to create a crisis in the current. . .system – by exploiting the gap between. . .law and practice – that would ultimately bring about its collapse and replace it with a system of guaranteed [outcomes]. They hoped to accomplish this end by informing [citizens] of their rights. . ., encouraging them to. . .overload. . .an already overburdened bureaucracy.”
• The authors pinned their hopes on creating disruption[.]   “Group conflict, spelling political crisis for the local party apparatus, would thus become acute. . .and the strains on local budgets became more severe.”

Consider some of the amendments proposed –

Summary of proposed Initiative 103, filed by Phillip T. Doe & Barbara Mills-Bria (Current as of 3/13/14):

Initiative 103 would amend the Colorado Constitution by adding a new section to Article XVI, the provisions of the constitution that govern mining and water rights. This amendment would:

Establish an “inalienable right” of the people of Colorado to clean air, clean water (including groundwater), and the preservation of the environment and natural resources (called “Public Trust Resources”), as common property of all people including future generations;
Require the state, as trustee of these resources, to conserve and maintain them for the benefit of all the people;
Require state government and its agents, as trustees, to protect Public Trust Resources from substantial impairment including pollution, applying a “precautionary principle” that any action or policy with a suspected risk, absent a scientific consensus of harm, places the burden of proving no harm on the proponents;
Obligate the state to seek natural resource damages from entities causing substantial impairment to Public Trust Resources, and to use such funds to remediate the harm;
Authorize all Colorado citizens (as beneficiaries) to sue to preserve Public Trust Resources against substantial impairment and to enforce the State’s obligations as trustee, to obtain legal and equitable remedies, and to recover attorney fees and costs when a court finds the state has not met its duties as trustee;
Require the state as trustee to use best available science in any process or proceeding that may affect Public Trust Resources, and to refer for criminal prosecution anyone manipulating data or scientific information for private profit; and
Apply to all public actions or commercial transactions that would violate these provisions, “regardless of the date of any applicable local, state or federal permits.”

Summary of proposed Initiative 89, filed by Caitlin Leahy and Gregory Diamond (Current as of 3/5/14)

Initiative 89 would amend the Colorado Constitution by adding a new Article, declaring and providing as follows:

Declares that Colorado’s environment is “the common property of all Coloradans”;
Declares that conservation of Colorado’s environment (including clean air, pure water, natural, and scenic values) is “fundamental”;
Declares that Colorado’s environment should be “protected and preserved” for all Coloradans, including future generations;
States that the people of Colorado, including future generations, have a “right to Colorado’s environment” (including clean air, pure water, natural, and scenic values);
Designates the state and local governments as trustees of “this resource” (referring to Colorado’s environment), requiring them to conserve Colorado’s environment (including clean air, pure water, natural, and scenic values) “for the benefit of all the people”;
Applies these provisions to the state, as well as to every city, town, county, and city and county, notwithstanding the provisions of the constitution that provide for Home Rule cities and towns and for Home Rule counties;
Provides that these provisions are self-executing and severable;
Provides that local governments shall have the power to enact laws, regulations, ordinances, and charter provisions that are “more restrictive and protective” of the environment than those enacted or adopted by state government; and
Provides that if a locally-enacted law or regulation adopted pursuant to the new Article conflicts with a state-enacted law or regulation, the “more restrictive and protective law or regulation shall govern.”

Summary of The Right To Local Self-Government from the Colorado Community Rights Network.

As all political power is vested in and derived from the people, and as all government of right originates from the people, the people have an inherent and inalienable right to local self-government, in each county, city, town, and other municipality.

That right shall include, without limitation:

The power to enact local laws. . .by establishing the fundamental rights of individuals, their communities, and nature. . .

. . .[to] define, alter or eliminate the rights, powers, and duties of corporations and other business entities. . .

The first two proposals above invent new public property rights that necessarily imply the abrogation of currently held private property rights.

The third proposal above invents classes of rights held by communities and nature [who speaks for nature?] and explicitly abrogates rights, powers and duties of corporations and other business entities – and it does so on the premise of our individual rights!

To say the least, these propositions are tough sells in the Land of the Free.  Each one contemplates a revolutionary overthrow of property, contractual, and ownership rights in Colorado.  Without any obfuscation or subterfuge, these questions demand a sober and detailed analysis.

Enter Cloward and Piven, and consider the Facebook page Yes We Can Ban Fracking, subtitled Jared Polis and Dark Money Democrats detailed below –

The above Facebook event boldly misrepresents the initiatives as being for fracking, when in fact they’re all constructs designed to shut down fracking.  Every link and reference points to a pro-Leftist issue, organization, individual, or opinion.  Moreover, while perpetrating a grand confusion, the author blames others for sowing that confusion.

This intelligent propaganda overwhelms logical reasoning.  It seeds the internet with the false assumption that the majority of Colorado is against fracking. It motivates activists to militate against fracking.  It feeds them a set of can’t lose “alternative” propositions that all fundamentally accomplish their objectives, and it motivates activists to go out and argue about them.

This smells of a Cloward and Piven strategy to produce an outcome by confusing and overwhelming the electoral system in Colorado.  

But it would be odd to expect the people who intend to dispossess Colorodans of much of their property to play fair. That’s just not something that truly fair minded people do, despite how they represent their motives.

It’s what con men do.