California Supreme Court Gives Taxpayers Hope
The People's propositions vs. judicial activism...
[by Jon Coupal] 11/9/05

With much attention focused on the United States Supreme Court and the elevation of John Roberts to be the Chief Justice and the nomination of Judge Samuel Alito to the seat currently held by Sandra Day O'Conner, it is easy to forget that the same debate over judges and the judiciary is occurring right here at the state level. Soon, Governor Schwarzenegger will select a replacement for the seat vacated by one of California taxpayers' favorite jurists, Janice Rodgers Brown.

At the core of this debate is the whole notion of "judicial philosophy" or, more bluntly, what is the proper role of courts? Is it the proper duty of a court to substitute its judgment for the Legislature when it passes a statute, or for the "People" when they use the initiative power? For most who consider themselves "conservative," the answer is no, even when the law being upheld could be characterized as "liberal." For example, a law enacted to decriminalize marijuana possession, if in compliance with state or federal laws, should probably be given its intended effect even if we don't agree with it.

Courts failure to uphold the letter, or even the spirit, of statutes or initiatives, has been particularly frustrating for taxpayers. Taxpayer-friendly measures, such as Proposition 13, have frequently been give intense scrutiny and then perverted and bent out of shape by an overly liberal and hostile judiciary. We are frequently asked why this is true. Unfortunately, the answer is that judges often come with a bias reflecting undue deference to the feelings of state and local officials. People forget that judges are public employees, too, and tend to side with the interests of other government employees, often to the detriment of taxpayers.

On the other hand, when the case is exceptionally strong, courts have upheld the will of the voters when it comes to taxpayer protections. Despite being opposed by every newspaper, union, business group and other special interests, Proposition 13 was overwhelmingly approved by the voters in 1978. A lawsuit was immediately filed against it by those representing the public sector, yet the court upheld its validity against a barrage of constitutional theories. (Only the ultra-liberal Rose Bird voted to strike Proposition 13 based on an Equal Protection theory.)

Despite its initial court victory, Proposition 13 was then assailed over a number of its provisions and, regrettably, these lawsuits resulted in several loopholes being created which immediately led to new local taxes that never received voter approval. Specifically, the courts totally corrupted the meaning of "special tax" and "special districts" in a manner that deprived local voters of their right to vote on tax increases.

These court-created loopholes resulted in the Howard Jarvis Taxpayer Association (HJTA) going back to the ballot in 1986 and, more recently, 1996 with propositions to close these loopholes. The 1996 measure, Proposition 218, the Right to Vote on Taxes Act, was meant to close a major new loophole relating to "benefit assessment districts," which were being used to impose addition charges against property owners. These tax schemes were -- and, in some cases still are -- being used to impose what amounts to flat rate parcel taxes for general government services. However, now, at least, thanks to Proposition 218, the scope of these assessments has been limited and property owners have a meaningful say in approving new assessments.

Recently, the Court of Appeal in San Jose, on a two to one vote, permitted a so-called "benefit assessment over an 800 square mile district to generate a total of $12 million annually for "open space" acquisition. This clearly violates the intent of Proposition 218, which restricts assessments against property to those services, like sewers, sidewalks, streets and lighting that directly benefit specific parcels. Attempts to saddle property owners with a county-wide assessment for a general benefit to the community is a distortion of the voters' will.

The great news is that six of the seven Justices of the California Supreme Court voted to hear the Santa Clara Open Space Authority case, which suggests that the lower court opinion, which is adverse to property taxpayers, is something that sparked their interest.

Lawyers for HJTA are currently working on this important briefing because, unless the Court of Appeal decision is reversed, major taxpayer protections contained in Propositions 13 and 218 will be seriously eroded.

The legal work accomplished by taxpayer advocates such as HJTA is just as important as passing propositions and lobbying in the Legislature. Without a strong legal defense of our voter-approved taxpayer initiatives like Proposition 13, those Constitutional Amendments would quickly become mere words on a piece of paper with no force or effect.

When government steps out of line and abuses the will of the People, taxpayers must be willing to bring the best legal talent available to the courtroom. Why? As Sean Connery said in the movie The Untouchables, "You don't bring a knife to a gun fight." CRO

Jon Coupal is an attorney and President of the Howard Jarvis Taxpayers Association.

copyright 2005 Howard Jarvis Taxpayers association

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