Saturday, December 23, 2006

Believing in Santa—and surnits

Kids not more gullible, says shrink

Psychologist: Children are actually using reason and evidence in believing in Santa—because adults dupe them by planting clues as well as creating the whole social context for the belief. (As well as for other, crazier and more consequential lies, according to this blogger.)

Do You Believe in Surnits?

Published: December 23, 2006, New York Times

Austin, Tex.

We delight in our children’s belief in reindeer that can fly and a fat man who fits through chimneys and travels the whole world in a single night. Many children believe fiercely not only in Santa Claus but also in other fantastical beings like the Easter Bunny and the Tooth Fairy from the time they are about 3 until they are 7 or 8.

Their eager belief contributes to the common view, shared by psychologists and other scientists, that young children are credulous (and conversely, that adults are not). Children believe everything they are told, we assume, with little regard for logic, a sense of the real world or any of the other criteria adults use to debunk such fictions as the Loch Ness monster or Sasquatch.

But are children really that different from us? A study that my colleagues and I conducted at the Children’s Research Laboratory at the University of Texas suggests not. We found that, in fact, children use many of the same cues adults use to distinguish fantasy from reality.

Our experiment was designed to investigate how a young child, upon encountering a fantastical being like a unicorn in a storybook, decides whether it is real or imaginary. Adults often make the call based on context. If, for example, we encounter a weird and unfamiliar insect at a science museum, we are more likely to think it is something real than if we find it in a joke store.

To see if children could also use context in this way, we described “surnits” and other made-up things to our study group. To some of the children, we put surnits in a fantastical context: “Ghosts try to catch surnits when they fly around at night.” To others, we characterized them in scientific terms: “Doctors use surnits to help them in the hospital.”

The 4- to 6-year-olds who heard the medical description were much more likely to think surnits were real than children who were told they had something to do with ghosts. The children demonstrated that they do not indiscriminately believe everything they’re told, but use some pretty high-level tools to distinguish between fantasy and reality.

If children are so smart, why do they believe in Santa Claus? My view is that they are exhibiting their very rational and scientific cognitive abilities. The adults they count on to provide reliable information about the world introduce them to Santa. Then his existence is affirmed by friends, books, TV and movies. It is also validated by hard evidence: the half-eaten cookies and empty milk glasses by the tree on Christmas morning.

In other words, children do a great job of scientifically evaluating Santa. And adults do a great job of duping them. As we gradually withdraw our support for the myth, and children piece together the truth, their view of Santa aligns with ours. Perhaps it is this kinship with the adult world that prevents children from feeling anger over having been misled.

So maybe this holiday season, when the children come rushing in to see what Santa brought, we should revel not in their wide-eyed wonder, but in how sophisticated and clever their young minds really are.

Jacqueline Woolley is a professor of psychology at the University of Texas at Austin.

Our response:

Hello Prof. Woolley,

Just read your article in the NYT, and I understand its point that it's not that children are more credulous (gullible, prone to fantastic beliefs) than adults.

You point out we actually do a great job of duping them, providing them with at least some evidence and authority for such beliefs as in Santa Claus and the Easter Bunny. As a psychologist, do you have an opinion as to the harm such beliefs (and our encouraging them) do? Is there any research on whether encouraging children to believe appealing fantasies helps lay the groundwork for irrational future (religious, ideological, etc.) beliefs (many of which are held contrary to moderate standards of logic and evidence)?

Likewise, when children eventually are disabused of many of their incorrect but well-authorized beliefs, perhaps it also weakens their trust in the reliability of their epistemological framework, so that though, ironically, they might be more prone to endorse and adopt beliefs less well supported by the usual markers of truth and factuality. Perhaps these people are then more susceptible to belief in Creationism (Creation "science"), as an example. (Although, admittedly, this scheme and others attempt to adorn themselves in evidence and logic-based raiment. It is their religious underpinnings that are more manifestly anti-rational.)

It seems a truism that belief in Santa Claus is practice for, or an analog to, belief in the theistic God. (Be naughty/nice, get distant-future reward vs. punishment, etc.). However, it seems to me to also be practice for all the other forms of doublethink engaged in and even encouraged by society at large.

I was recent reading the sequel to Prof. Frankfurt's On Bullshit—On Truth—in a bookstore while waiting for my wife to do her shopping. Amid other sensible comments, he then started saying that a society that evidences a disregard for the importance of truth—casualness about whether things said and beliefs held are true or not—cannot flourish.

That's when I put the book down, as obviously (and unfortunately) at odds with the facts. (Of course, a society can't disregard truth in its engineering, scientific, economic and public policy-related activities and long flourish, but apparently those can be somewhat disconnected from other areas of collective life in which truth and falsity also could be operative concepts, but, sadly, generally are not.)

E.g., with you being from the great state of Texas, can you account otherwise for the fact that our current president, a former oilman from a major oil-producing state, etc., was elected twice by people who would not otherwise prefer to be paying 50% to 100% more for their gasoline than when he took office, among all the other burdens heaped on average working people during his administration?

Cheers --and Merry Christmas!


Prof. Woolley's response:

Dear David,
Thanks for your thoughtful email regarding my NYTimes op-ed piece in December. My apologies for not replying sooner. You were wondering about relations between Santa beliefs and later religious and ideological beliefs. Unfortunately there is no research of which I am aware that addresses your question. I do plan to conduct research into relations between SC beliefs and God beliefs, tho' it can be hard to get ethics approval for those kinds of studies. Cindy Dell Clark ("Flights of fancy, leaps of faith") argues in her book that SC belief provides the foundation for "faith" and ultimate belief in God. Jehovah's Witnesses and other Fundamentalists discourage SC beliefs for fear that it will negatively impact God beliefs. Anecdotal evidence suggests that children often try to figure out how the two are related, and often think of them similarly. There is some research on children's beliefs in creationism; it may be cognitively "easier" to believe in God than to "believe" in evolutionary theory (Margaret Evans, Pascal Boyer). Re: your final comment re: our great state, I do need to pass along that Travis County (where Austin is) voted overwhelmingly Democratic in the last election; we are a blue county in a red state. Our president presents a fascinating case in point regarding the challenges the fantasy-reality distinction continues to present throughout the life-span.
Jacqui Woolley

Jacqueline Woolley
The University of Texas at Austin
Department of Psychology
1 University Station A8000
Austin, Texas 78712-0187
Office:SEA 4.212
FAX: 512/471-5935

Blogger's note: There would be value in publishing and commenting here on a column in a Wall Street Journal Personal Journal section from last winter (2008, at this point) a commentator's argument that he encourages his sons' belief in Santa, though Santa doesn't exist, because, "Yes, Virginia, there is a God." You could look it up. Kind of pathetic. –DT

Tuesday, December 19, 2006

Pearls before ... peers

Blogger laments that 'campaigning' fell on deaf ears

Recommendations that fellow film critics give serious consideration for awards to a variety of challenging and difficult, but ideologically and artistically rewarding films go unheeded.

After learning of the practice a few years ago, I "campaigned" lightly for some films I found interesting, and potentially overlooked or misunderstood (see the very first post on this blog: some comments on and exchanges with a fellow critic over the plot and meaning of "The Fountain"). Below see a few sketchy such messages sent to fellow Phoenix Film Critics Society members, in some cases with some of their responses interpolated. (Also just a stray review or two, not yet published, or bit of publicity company feedback.)

The immediately earlier posting is the Society's awards given to films this year, with a comment that consists of the ballot offered by this critic. There was clearly very little overlap between the two, as this critic gave most of his nods to some films that are either somewhat aberrant and/or of limited release, while PFCS as a whole largely stuck to more middle-of-the-road contenders.

Apart from how this movie stacks up in the history of film noir, what’s interesting to me—and is an aspect most people seem to have overlooked—is the parallel in the plots, the two “current” plots with Adrien Brody as Louis Simo, P.I. One is the subplot of his paranoid psycho client, who loses his mind, wife, and freedom over his baseless suspicion that she’s cheating, a theory he’s hired Simo to prove (in vain). The parallel lies in the fact that by the end of the film—despite all the viable hypotheses as to who could have murdered “Superman” George Reeves—Simo realizes it’s as likely that Reeves did kill himself, and that he (Simo) has been pursuing the same kind of possibly misguided, obsessive hunt for a villain (and at a similar risk to everything he holds dear) as his hapless former client.

Campaigning comments Dec. 3
I want to recommend "The Proposition" as possibly a sleeper of a film but one that I think rightly ought to at list make the short list in several categories, including Best Picture, Cinematography, acting (Ray Winstone, Guy Pearce, Emily Watson and, in a twist, Danny Huston, who seems to have evolved since a somewhat shambling performance in "Silver City," via "Constant Gardener," to this year's roles--also interesting in "Children of Men.")

But is "The Proposition" eligible? ImDb says it was released in '05. Anyway, I thought it was the best "classic tragedy" since "House of Sand and Fog."



"Babel" impression e-mailed to publicity rep (also see review Nov. 20 print edition of
The Midtown Messenger).
Excellent, but can a "Crash"-like film win a BP Oscar two years in a row? Those who think this Pitt's sudden "Best Acting" turn should recall "12 Monkeys," "Se7en," among other roles. Anyway, an excellent impressionistic view of the irony of fragmentation and alienation in an increasingly globalized world.

"The Good Shephered" impressions given to publicity rep ... nominated DeNiro for "best breakthrough - behind the camera," as best director.
As to the length, it can take a while to depict a character's long, slow descent from apparent idealism into ethical compromise. (Later gravitated toward peer's view that Matt Damon's "Edward Wilson" was never idealistic, so to speak, but determined, ruthless, discreet ... and patriotic, if you will.)

As to scenes and direction, as well as acting, this film is long (and, euphemistically, as a nod to David Ramsey, "leisurely paced"), but every piece eventually fits into the larger puzzle. E.g., the necklace Wilson finally has returned to Laura. Also the suicide note his father left, which he finally opens and reads ... and burns.

But although Wilson seems high-minded and conscientious, he is "patriotic," but apparently only on behalf members of his ethnic clique, as he makes clear in the conversation with Joe Palmi (Joe Pesci—great makeup job).

So it's not too hard to connect the dots of his career of corruptedness, from when he authorizes his first murder—of the German translator he spent the night with—to his later authorization, by declining to object to it, of the murder of his son's fiancee. His having the incriminating goods on FBI guy (William Hurt) all along also shows how he kept his own counsel, heeded the advice that he couldn't trust anyone, and was calculating and untrustworthy himself all along.

The scenes of the murders of both women are disturbing, though brief. The scenes of Wilson with his son, where tender, are also affecting, though the one where his son realizes his fiancĂ©e is not showing up, Wilson Sr.'s supporting embrace is of course a cover for his culpability in her demise—and the shot of the son being held by the father, son not standing on his own two feet, is sad and ironic.

The earlier scene where he doesn't stay to comfort his son in his night fears but instead answers the phone, is telling, and stands as evidence against his later protest to Margaret that "he never abandoned anyone."

Seemingly nice guy, but NOT. Interesting, well-crafted character study.

Only the fact that it seems highly convenient to the story that his son overheard the location of the Bay of Pigs invasion, setting up the final, highly compromising moral choice, is a weakness of this film, from a credibility point of view.


Dec. 8 exchange with PFCS president David Ramsey about the society's choice of "Blood Diamond" as best film of the week (average 8.3 out of 10 rating), in same week in which "Apocalypto" was released ...

Reviews of the films in today's New York Times tend to validate my preference for "Apocalypto."

I agree with you and it was one of the closest votes of the year.

On the other hand Roeper of Ebert & Roeper said "Blood Diamond" is the Best Film of the Year.

More reasons I don't pay attention to other critics.


David Ramsey

I don't know the general value of Roeper's opinions as expressed on the show, but I can tell you this: Someone gave me a remaindered book of his—his agent turns out to be a woman I know in NYC, who I thought had better judgment. It is full of a bunch of lists, such as how you can tell which characters are going to get killed in the first 20 minute of the film, etc., most overlooked films of all time, etc. etc., and it's the biggest bunch of blatantly unsupported, frivolous opinions and various other BS I've ever seen in printed form.

Some critics are definitely more worthwhile than others, though we all have our idiosyncrasies and subjective tastes. And sometimes they do offer a way of looking at something, or something I'd missed, that I am glad to be made aware of.

I'm about as opinionated as they come, but I really do enjoy getting the benefit of other people's opinions too, when thoughtfully arrived at (even if wrong).


Message to fellow PFCS members Dec. 14 as ballot deadline approached
I quite liked "Shortbus," but again, as a Thinkfilm DVD their reproduction problems rendered it unplayable, in this case about 2/3 of the way through—better than the 1/3 of the way through screwiness several of their other DVDs experienced. At least I saw more of it, but that also whet my appetite to SEE HOW IT ENDED!

FYI, my second copy of "Tideland" still had problems, but at least I was able to finish watching it. Campaigning Campaigning Campaigning: Besides the awesome performance of the young actress Jodelle Ferland, the score for this film was very interesting and effective (though long portions had no music), as well as the cinematography—and makeup, so to speak. If anyone was put off by this highly idiosyncratic film's garishness, I urge them to give it further viewing and deliberation. Likewise, the gratuitous chatter on and the explicit, non-simulated sex in the film "Shortbus" should hopefully not deter serious critics from enjoying and considering this intelligent, amusing and well-acted film for whatever awards it may merit: ensemble acting? (that's said only slightly jokingly). I also considered "A Guide to Recognizing Your Saints" an excellent ensemble film, and it was much, much different, and better, than I anticipated it would be. I also chime in in support of the award mentioned in a recent e-mail for "Half Nelson."


Last bit of campaigning before PFCS voting, in response to a Dec. 15 campaigning message urging consideration of "United 93" for best picture (a great film, recipient of PFCS nod in the end, but other films overshadowed it in the view from here.) In other news, "Fending off closest rivals "The Queen" and "The Departed," "United 93" was voted best picture of 2006 by the New York Film Critics Circle on the fifth ballot."

While we're at it, I want to commend "The Dead Girl" as a film of significant merit, with some outstanding performances and other values, easily overlooked for whatever reason. While Toni Collette is more visible due to "Little Miss Sunshine," I am thinking of nominating her for best supporting actress for "The Good Girl"—even though it's an episodic film and she only appears in the first segment.

As far as that goes, Giovanni Ribisi is usually very worth watching, as here, though he was a bit wasted in "Lost In Translation" and some smaller indie film he agreed to star in in which he plays a paranoid star thinking he's being stalked. But anyone recall his role in Sam Raimi's somewhat overlooked Cate Blanchett vehicle, "The Gift"?

I know there needs to be a certain amount of groupthink or all is chaos and people voting for outlandish things are wasting their vote, but as long as we have a top 10, there's room for quirky choices.



Final balloting note: This critic had not as of this post seen several films widely well-regarded and likely worthwhile: "The Queen," "The Prestige," "Hard Candy," "Volver," "Venus," "Casino Royale" and "Days of Glory ("Indigenes").

PFCS 2006 film awards announced


Phoenix, AZ (December 19, 2006) – The Phoenix Film Critics Society (PFCS) is proud to announce their award winners for 2006 and the list of their Top 10 films.

Taking top honors for Best Picture this year is Universal Pictures' "United 93," with "Casino Royale" receiving the second ever Best Stunts award.

"The Departed" and "Little Miss Sunshine" dominate the Seventh annual awards with both films taking best screenplay awards and Martin Scorsese being named Best Director. Jack Nicholson is taking home the Best Supporting Actor award for "The Departed" while "Little Miss Sunshine" collects Best Acting Ensemble and Best Performance by a Youth - Female for Abigail Breslin.

Proving that acting is in the genes Will Smith's son Jaden was named Best Youth Actor – Male for his performance in “Pursuit of Happyness.” Other big winners included Forest Whitaker as Best Actor in "The Last King of Scotland", Helen Mirren Best Actress in "The Queen" and Cate Blanchett wins Best Supporting Actress for her performance in "Notes On A Scandal".

Jennifer Hudson had her breakout performance co-starring in "Dreamgirls" while Emilio Estevez had his breakout performance behind the camera directing “Bobby.”
"Letters From Iwo Jima" was named Best Foreign Language Film, "An Inconvenient Truth", Al Gore's warning on global warming was "Best Documentary", "Flushed Away" Best Animated Film and "Charlotte's Web" Best Live Action Family Film.

The Phoenix Film Critics Society (PFCS), founded in 2000, is comprised of recognized Valley critics who review regularly for Phoenix area print and broadcast outlets. Current members include: David Ramsey, KMLE-FM/KNXV-TV/Arizona Player Magazine, President; Roger Tennis, CLIPS TV Series, Vice President; Frances Rimsza, Foothills Focus/Gear Chatter, Treasurer; Gayle Bass, KTAR-AM, Secretary; Michael Dixon, KTAR-AM, Director; Neil Cohen, Echo Magazine; George Grorud, Java Monthly; Bill Muller, The Arizona Republic; Kathy Cano-Murillo, The Arizona Republic; Richard Nilsen, The Arizona Republic; Scott Craven, The Arizona Republic; Randy Cordova, The Arizona Republic; Craig Outhier, The Tribune Newspapers; Arne Williams, Arizona Informant; Andy Hill, The Ahwatukee Foothills News; Colin Boyd, KZON-FM/College Times; Michael Clawson, West Valley View; Kris Mason, Nearby News; David Tell, The Midtown Messenger; Mark Moorehead, Tempe/Chandler Wrangler News; Jim Ferguson, KGUN-TV/TV Guide Network; Randy Montgomery, Xpoz Magazine/Greensheet; M. V. Moorhead, Wrangler News; Sharon Stenger, Foothills Focus; “Hollywood” Dave Sozinho, KTAR-AM/KRZS-FM; Phil Villarreal, Arizona Daily Star; Jamise Liddell, Arizona Christian News; Lisa Fuller-Magee, KTVK-TV; Stan Robinson, Sonik Magazine; Steven Gregory, Clear Channel Radio.

The complete list of Seventh Annual Phoenix Film Critics Society Award winners:

Best Picture
United 93

Top Ten Films (In Alphabetical Order)
Children of Men
The Departed
The Last King of Scotland
Letters From Iwo Jima
Little Miss Sunshine
The Queen
United 93

Best Director
Martin Scorsese - The Departed

Best Performance by an Actor in a Leading Role
Forest Whitaker - The Last King of Scotland

Best Performance by an Actress in a Leading Role
Helen Mirren - The Queen

Best Performance by an Actor in a Supporting Role
Jack Nicholson - The Departed

Best Performance by an Actress in a Supporting Role
Cate Blanchett - Notes On A Scandal

Best Ensemble Acting
Little Miss Sunshine

Best Screenplay written directly for the screen
Little Miss Sunshine

Best Screenplay adapted from another medium
The Departed

Best Live Action Family Film
Charlotte's Web

Overlooked Film of the Year
Hard Candy

Best Animated Film
Flushed Away

Best Foreign Language Film
Letters From Iwo Jima

Best Documentary
An Inconvenient Truth

Best Use of Music

Best Cinematography

Best Film Editing
The Departed

Best Production Design
Marie Antoinette

Best Costume Design
Marie Antoinette

Best Visual Effects
Superman Returns

Best Stunts
Casino Royale

Breakout Performance of the Year - On Screen
Jennifer Hudson - Dreamgirls

Breakout Performance of the Year - Behind the Camera
Emilio Estevez - Bobby

Best Performance by a Youth in a Lead or Supporting Role - Male
Jaden Smith - Pursuit of Happyness

Best Performance by a Youth in a Lead or Supporting Role - Female
Abigail Breslin - Little Miss Sunshine

Monday, December 18, 2006

Film reviews that didn't make the Dec. 18 issue

Films out now, recently, or already on DVD or in second run:

'Copying Beethoven' doesn’t copy ‘Immortal Beloved,' thank god
They probably got B’s personality right, and, unlike in that abomination, “Immortal Beloved,” they got the music right—didn’t go on repeating the shmaltziest stuff over and over, such as the Emperor Concerto’s middle movement. And didn’t try to make his music-making a refuge from the trauma of alleged abuse by his father. And are correct in having him called, colloquially in the tavern, “Louis” (as in my unfinished screenplay about him). Uneven dramatic arc, though, since the climax with the performance of the immortal 9th comes virtually in the middle of the film. The aim of exploring B’s later, more impenetrable, even grating works, such as the Grosse Fugue—there must be a different way it could have been handled. And Ed Harris has the presence, but not the right voice for the role. Tommy Lee Jones would have been just right, with he and B sharing a pretty pockmarked complexion, in addition to the angular bone structure. But again, the voice ...? “National Treasure’s” Diane Mueller handles herself well, except the tripe written as “her composition”? Somebody fell down on that one. (Like B as if on his whoopee cushion, so unkind.)

Why not call it ‘The History Girly-Boys’?
Did they intend to prove that all Englishmen are really queers? Or just confirm that English “public” schools are rife with casual, “experimental” homosexuality (as well as the more ingrained kind)?

'Little Children'—Full-grown whiners just seem like adults
Perhaps we sometimes benefit from not being a top-tier city. (Why not all films released are screened here?) Well, I was misled by comments on into expecting “Little Children,” viewed on DVD screener, to be a fine film. Don’t be misled! While the acting is OK and the themes are of some importance, the script is extremely clumsy and the thrust obvious—and the general spurious grotesqueness of the behaviors and events reminds me of Pat Conroy’s work (The Great Santini, The Prince of Tides). There is intelligent exploration of the question of whether classic tragedienne Emma Bovary is struggling justly for happiness or is merely a selfish, unrealistic, foolish woman whose poor choices hurt her and others*, but overall, this film is one of the bigger stinkers I have seen in quite a while. If this were 20 years ago, the film would be accused of featuring a great deal of yuppie whining, ineffectuality and gratuitous angst. Oh, what the heck: This film features a great deal of yuppie whining, ineffectuality and gratuitous angst. To say your kid “refuses” to sit in its car seat? Give me a break.
*My wife read me a passage recently from Philip Roth’s novel Deception that contained a very good assessment of the false and injurious approach to love that Emma Bovary’s attitudes and behaviors represent.

'For Your Consideration,' for your consideration
Spoiler alert!!!: For the record, I guessed that Ricky Gervais, as the Philistine movie company executive, was warming up to suggesting that--and would succeed in getting--the film-within-the-film to tone down its “Jewyness” (to use Jon Stewart’s less politically correct term for it). Jennifer Coolidge as the similarly clueless but more ingenuously immured “producer with the heart of gold” is also watchable, for that and other reasons. Overall, the film is mostly pretty amusing, especially Fred Willard’s constant in-your-face sarcasm and other gratuitous but well-aimed vulgarity and offensiveness. (Especially enjoyed his snarky comment on foreign film: “Yeah, what’s with all the writing along the bottom of the screen? That ain’t breaking news! …”) Some other gags are rather predictable, such as agent Eugene Levy answering his cell phone in the middle of telling client Harry Shearer there’s nothing more important to him than … Then there’s Shearer’s dead-on understated “shmo-ness,” and the wonderful moment in the scene in “Home for Purim” where his Southern accent suddenly becomes Yiddische, like the chain jumping the sprocket on your out-of-adjustment 10-speed. If you liked “Guffman,” “Best in Show,” you’ll want to add a notch to your bedpost for this one, too (though it’s likewise probably not a very mass-appeal film. Then again, how’d the similarly inside-joke/cultish “Prairie Home Companion” do at the box office? This is better than that, at least.). (And now we learn Christopher Guest is married to Jamie Lee Curtis? What a stud. Stud? What a mensch!)

'The Last King of Scotland' star kind of a pretender
It’s weird: By contrast, I thought Forest Whitaker, who plays the jolly and charismatic but brutal and paranoid Ugandan dictator Idi Amin here, seemed really really empathetic in “Species.” (And James McAvoy seemed more principled, and less casual in his morality and superficial in his idealism, as Tumnus the Faun in “Narnia.”)

Encanto Historic District update

California developer files appeal of HP designation

Council OK'd overlay for garden apartments, other properties, overruling planning boards

Scott Haskins, owner of properties at 1302 W. McDowell affected by the HP overlay OK’d by Council Nov. 1, filed a takings appeal on Nov. 28, but has indicated he may waive his right to an initial hearing within 30 days, which would place it during the holidays. The appeal is governed by existing state law, not the just-passed Prop. 207.

From our Nov. 20 print issue: Prop. 207 passes. Who's to blame?

Ballot initiative Proposition 207 wins big

Sold as eminent domain fix, property rights measure; preservation now to face tougher challenges

By David Tell, Messenger Editor
© 2006, Quicksilver Publishing Group. All rights reserved.

Amid all the Election Day results that thrill some and depress others, one outcome that ought to be of particular concern for preservation advocates and neighborhood activists is the resounding success at the polls of Proposition 207. Billed as a “property rights” measure and marketed as a response to last year’s “Kelo” decision by the U.S. Supreme Court affirming the transfer of private property to another private owner under an economic redevelopment rationale, the citizens initiative was one of several similar measures placed on the ballot in states around the country.
In Arizona, where eminent domain has been in the news and on the legislative agenda over several years recently, the measure apparently resonated with concerns of many residents, and passed by a wide margin.
As is often the case, however, among the provisions in the measure are some that go beyond the stated aim of eminent domain reform. Of particular concern to many is the fact that the proposition provides for private lawsuits against governments by property owners who might seek to prove that a land use change applied to their property has reduced its value. Some are concerned that this will open a floodgate of expensive litigation against municipalities in particular, leading to the hamstringing of efforts to protect and preserve neighborhoods and structures, and leading to greater caution by governments in pursuing some types of land use planning and protective zoning.
The Protect Arizona Taxpayers Coalition was one group formed by concerned individuals and environmental, preservation, government and neighborhood organizations to attempt to get the word out and defeat Prop 207. In the aftermath of the election, players from that anti-207 coalition are expressing their regrets about the outcome, and in some cases questioning why they were unable to mobilize more voters in opposition to the “property rights” juggernaut.
Paul Barnes, a respected activist who heads the Neighborhoods Coalition of Greater Phoenix, was centrally involved in the anti-207 effort. In talking about the vote’s outcome, Barnes sounded frustrated that the hard work to fight the initiative seemed to have had so little impact. He is also concerned about a process for getting measures on the ballot in the state that—not exclusively to this case—allows out-of-state interests to come in and create new political and economic conditions that they themselves do not necessarily have to live under.
“Obviously, I was disappointed with the results,” Barnes said. “As to what I think it will mean near-term: I’m concerned about its effect on the ability to pass new historic overlay districts, neighborhood special district plans—as well as on this urban form planning.”
“Urban form planning” is a new approach being used elsewhere and currently being considered in Phoenix that elevates design considerations in urban land use planning.
“I think it’s going to have a serious negative impact on neighborhood preservation efforts,” Barnes added. “Perhaps most alarming of all is the fact that you can have an out-of-state group come in and basically buy an initiative—get it on the ballot with out-of-state funds—and be successful with what even the Republic said was a very misleading campaign of what was involved. They used the Trojan horse of eminent domain to cover up the real issue, which was land use planning and the whole legislative takings issue. Their advertising was misleading on television as well as on radio. I think that’s very unfortunate.”
Barnes went on to express some views that he emphasized were exclusively his own, rather than in his role as part of any organization.
“Personally, I think some of the responsibility for having this situation has to rest with the League of Arizona Cities and Towns, as well as the city of Phoenix,” he said. “This past legislative session, I think it would have been much better for them to have worked out a satisfactory solution on eminent domain, rather than taking the ‘higher ground’ that they did, which gave Howard Rich and people of that persuasion an excuse to conjure up this ballot statement.”
Howard Rich is a wealthy New York resident who supported efforts to place similar property rights initiatives on the ballot in a number of states this year.
Ken Strobeck, executive director of the Arizona League of Cities and Towns, deflected Barnes’ finger-pointing. Strobeck said hindsight is 20/20 and admittedly, there are always things you wish you might have done. However, “We worked through the entire session on 19 different eminent domain bills. We had a piece of legislation that we proposed that we think was a very good compromise, but that tried to answer concerns of people who thought eminent domain is out of control,” Strobeck said. “The Legislature did not even give that bill a hearing. Howard Rich paid $14 million for this kind of initiative to be run in 11 different states; this was a measure the was going to come down the tracks [no matter what else happened]. Whatever did pass was not going to be enough.”
Strobeck didn’t itemize all the areas or items where he believed the League’s proposed legislation better met the concerns of eminent domain reformers, but Barnes said an area the league and its constituents had previously balked at included tightening up the definitions of slum and blight.
But Strobeck said he thought that concern had been fairly addressed. “We agreed to do a property-by-property finding of blight and slum areas,” he said. “That was one of their big pushes, that a finding can’t be block-by-block.”
Strobeck said some outlandish criteria for a finding of blight, such as the existence of curved streets (as has been mentioned in our letters column by downtown resident and eminent domain critic Erick Baer) are relics that are rarely if ever used. “That’s in the original statute that goes back almost 100 years,” he said. “Pull them out in today’s context, you’d go ‘That isn’t blighted.’ —Some of those really obscure provisions, cities don’t hang their hat on things like that. We agreed to leave those things out.”
Strobeck’s rebuttals notwithstanding, Barnes feels negotiators dragged their feet on coming to the table with needed concessions to get a viable eminent domain reform bill. As it was, a bill passed, and Gov. Janet Napolitano nixed it, in her record-setting use of the veto pen. That’s not what bothers Barnes: “The bill that did reach the governor was clearly not acceptable,” he said. However, of the League’s never-considered proposal, “They weren’t early enough with a bill that would be a sufficient compromise to keep everybody happy. Initially they were holding out for too much, and by the time they came around, it was too late,” he said, adding that lack of a timely willingness to tighten up on the definition of slum and blight “was part of it.”
Moreover, “Neither the governor nor the mayor were willing to come out strongly against this [proposition], regrettably. The governor was silent on it,” Barnes lamented. “Schwarzenegger came out against [a similar initiative] in California and it didn’t pass there. I don’t feel we got the support from the people that we needed. It could have made a difference.”
Mayor Phil Gordon’s failure to use his bully pulpit against the proposition is especially culpable, as “the things they want to do downtown are going to be seriously hampered by 207 as it was passed,” Barnes said.
District 6 City Councilman Greg Stanton, who authored an anti-Prop 207 column for this publication last month, also rues the outcome, and while he prefers not to lay blame, he agrees there is responsibility to go around for not adequately educating the voters about the ballot item. And he also gives credit where credit is due.
“Paul and the citizens group that came together did the best job they could on a shoestring budget,” Stanton said. “I think we all learned an important lesson: There should have been a more organized and funded campaign against 207. On a statewide issue, in this day and age, you really need a significant budget. With so many issues on the ballot, there could not be a well-funded effort on all of them.” That said, “There wasn’t a huge amount of intensive outreach” on the anti-207 side,” he said. “The public bodies as a whole really have to do some thinking about this one, everyone needs to look at themselves and say ‘Did we do enough?’—because this passed overwhelmingly.” The measure was approved 65 percent to 35 percent.
“We were never fully able to educate folks on the implications on the ‘diminution of property values’ side of the issue,” Stanton said. “Collectively, for those of us who represent cities and the people, this was not in the best interest of the people I represent, to protect our neighborhoods.” Barnes is one of Stanton’s constituents, living in the Arcadia area, which is full of large-lot homes and has a zoning overlay to protect its character. Some vintage areas of north central Phoenix with historic or other zoning protection are also in Stanton’s district.
Stanton agreed that the proposition was misleadingly marketed, and rode a wave of popular ire over the “Kelo” decision, in which some longtime Connecticut homeowners were displaced to make way for a private development.
“Prop 207 led with the issue of private property rights, and if you talk in those terms, it’s a hard issue to overcome. Everybody wants to protect private property rights, and with ‘Kelo,’ Bailey’s, private property rights have been brought to the forefront. Those things are protected. We have one of the most restrictive eminent domain regimes in the country—that’s why we still have Bailey’s Brake Shop; he’ still operating,” Stanton said. But “I don’t think the proposition was fully vetted, people didn’t understand its full impact. The measure’s creation of a cause of action against government for diminution of property values—there are instances when people are reasonably going to ask their government to step in and act on behalf of historic preservation, and [now] it won’t be able to. Once people see down the line, there will be an attempt to revise this measure,” Stanton predicted. “I have the feeling there will be changes made to this law. Historic preservation, special planning districts, are things the public supports.”
In the meantime, though things will be more difficult in those arenas, Stanton predicted.
Asked whether the risk now is that governments will pull back from reasonably regulating land use in some instances; that there could be large payouts from diminution-of-value lawsuits in some cases; or that such suits would hobble the system, Stanton said “All of the above. Whereas the city has a very strong and vibrant HP effort, that will be set back. That doesn’t mean we’re not going to do HP at all, but in the controversial cases, where we do a ‘gut check,’ things might come out differently [than if based on an analysis of the merits],” Stanton said. “The kind of votes where there is significant opposition are the ones in question. The easy votes will still be easy. But because of the cost to the people of this city, the harder cases might give us pause. That’s not a hypothetical.”
Asked whether the current controversies over extending historic overlays in the Encanto-Palmcroft and Oakland historic districts are the kinds of cases that might be affected, Stanton answered cautiously. “I hate to put it in terms of a specific case; the dynamics of each case are different,” he said. But, “When you have HP zoning of an area where the property owner doesn’t want it, that’s exactly the kind of situation at issue” under the newly passed law.
Stanton said ideally, owner support should not weigh heavily in such decisions. “When we analyze HP, the question should be, ‘Is their area historic, is it deserving of the status of being historic?’ Occasionally that means the property owner doesn’t want it,” he said. “But just because of being designated historic, that doesn’t mean you can’t develop your property. There are significant limitations, you may have to wait a year, ponder, think it through ... I’ve never viewed HP as some kind of draconian land use designation; it strikes a balance between the interests of the community as a whole and the property owner.”
But, as a case of another protective zoning move that perhaps wouldn’t happen under Prop 207, the “Warehouse District Overlay, we’d have to think long and hard before we’d do that again,” Stanton said. “Land use is an area where the issues are often very complex, issues are subtle. We’ll take the individual cases, and we work hard on them. In most cases, HP is done in partnership with property owners. Most cases are promoted by people who love preservation, and in most cases, the zoning adds value to a property.”
In the end, “HP was one of the big reasons why I opposed 207, that’s where it may have the most unintended impact,” Stanton said, “Preservation has been a pretty good priority of City Council.”
As important as HP is, the potential effects of 207 go further, Stanton said. “What if we want to upgrade our design standards, for big boxes, for example? Arguably, that’s a restriction on property, that adds a cost to developing that land,” he said But ultimately, “It’s improving the community.”
“From my political position, the Supreme Court was wrong in ‘Kelo.’ That was wrongly decided,” Stanton said. “I don’t think they should have allowed a private taking in the case without blight; I was surprised East Coast states apparently have such loose restrictions on the use of eminent domain.”
But as a regrettable outcome of the measures passed in reaction, “The effects of 207 will be a hotly debated and hotly contested issue in the years to come across the state. This will be a field day for lawyers,” Stanton—a former lawyer himself—concluded.
Strobeck agreed with Barnes and Stanton that the outcome is unfortunate and that the measure was misleadingly sold. “We’re very sorry that it did pass. It’s one of those things: People thought they were voting on eminent domain, heard so much about that, were not aware of all the things stuffed into the measure,” he said. “The regulatory takings provision, that’s going to be litigated for years, will be very costly for all levels of government—and first, for citizens.”
Strobeck confirmed it was the League that sued a few months ago to try to get the initiative knocked off the ballot, for failing to meet a requirement adopted in recent years, that citizen initiatives attempting to create new programs entailing government expenditures identify a funding source to pay for them. For example, Proposition 203, which creates child health and education programs, also adds a new tobacco tax to pay for them.
“We analyzed the measure from a whole bunch of different angles, and our attorneys decided that was the strongest angle, that it did not have a funding source identified,” Strobeck said. “Voters passed an initiative [with that provision] two years ago, but that requirement only applied to state government, not to counties or cities.
“We got a ruling from Superior Court; it said ‘You’re right, it probably is unconstitutional. But they declined to invalidate it, saying ‘That would be getting into the substance of the measure.’ It came down to a question of ‘ripeness,’” he said.
Strobeck said he doesn’t know whether that legal challenge will now be renewed. “We haven’t made a final decision,” he said. “We did look at the Supreme Court decision yesterday [Nov. 10] upholding that decision. They also threw out the finding that it was clearly unconstitutional.”
Strobeck said the measure isn’t invalid for having multiple subjects, as that only applies to proposed constitutional amendments. But interestingly, that issue has some relevance to the rejection of the legal challenge to 207, based on the courts’ insistence it was premature to invalidate it reading it for problems of substance, rather than form. “Our attorneys have said using the Supreme Court standard that they put in yesterday, even a ‘multiple subject’ lawsuit would have to be a post-election challenge, as it would require the court to read the essence of the measure.”
But given the latest ruling, to fight the initiative now, “We would have to bring a new suit,” he said.
As for Phoenix’s outlook, “I have a meeting set with the Law Department to find what implications are,” city HP Officer Barbara Stocklin said. “Clearly there will be implications for the HP office and our programs.”
According to Larry Felix, an attorney in the city’s Law Department, “I was at several meetings about this” during the campaign season, and city staff “were saying they expected lawsuits to be filed.”
Felix said he isn’t the specialist in this area and that City Attorney Gary Verburg or Deputy City Attorney Bill Bock would probably be part of meetings such as the one with Stocklin, as well as city staff attorney Margaret Wilson, who specializes in zoning.
In the meantime, “There’s quite a bit of work the city is involved in, on the consequences the city will have to live with,” due to 207’s passage, Felix said. In Oregon, where a similar statute has been in effect a couple of years, “there has been $7 billion in claims,” Felix said. He wasn’t confendent of the magnitude, but if it is that large, it’s probably because there, “the law was retroactive.” Here, as far as he can tell, it is not.
Also looking more widely, a Wall Street Journal editorial (Nov. 11-12 edition) commented that “three states that rejected similar measures—California, Washington and Idaho—did so in part because proponents overreached politically by insisting that landowners should be compensated when government regulations diminish their property values. Opponents were able to portray this as a threat to state budgets and fiscal prudence.”
As for the Protect Arizona Taxpayers Coalition, it released a statement following the passage of Prop 207:
“If the initiative process is to remain viable and retain its integrity we must ensure that our rights as voters cannot be auctioned off to the highest out-of-state bidder. Close to $1.5 million was spent by special interests from outside of Arizona to put Prop 207 on the ballot and mount a deceptive campaign designed to trick the voters into voting yes. The organizations that bankrolled this initiative are all connected to Howard Rich, a wealthy real estate speculator from New York.
“Now that we’ve given Howard Rich a foot in the door he will most assuredly be back with even more extreme measures.
“Proposition 207 will result in serious consequences for the state of Arizona and could have a devastating affect on our quality of life and our ability to enact laws that protect our neighborhoods and communities. Under the guise of addressing eminent domain, Prop 207 goes far beyond. It includes an extremely confusing and deceptive measure that forces taxpayers to pay land speculators for unrealized profits caused by community planning restrictions or waive the restrictions for them.
“We must now pull together as a state to figure out a way to right this wrong, and commit ourselves to remaining vigilant in the future so that we cannot be fooled again.”
On a broader note, does the change in political winds nationally signify a resolve against “getting fooled again?” Maybe, maybe not: “Meet the new boss, same as the old boss.” (Coincidentally, The Who are now touring to promote their first new album in decades.)