Supreme Court Gives Taxpayers Hope
The People's propositions vs. judicial activism...
[by Jon Coupal] 11/9/05
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.
Coupal is an attorney and president of the Howard
Jarvis Taxpayers Association -- California's largest
taxpayer organization with offices in Los Angeles
and Sacramento. [go to website] [go
to Coupal index]
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,
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
is an attorney and President of the Howard Jarvis Taxpayers
2005 Howard Jarvis Taxpayers association