The legacies of Howard Jarvis and Hiram Johnson are in the crosshairs in a lawsuit that was heard by a state appellate court last week.
So is your pocketbook.
Filed by former UCLA Chancellor Charles Young, the suit aims to open new spigots of cash for government by cancelling one of Jarvis’ great bequests to taxpayers — the rule that state lawmakers can’t raise taxes without a two-thirds vote in both houses. This supermajority plank was part of Proposition 13, the initiative best known for lassoing out-of-control property taxes and setting them on a steady and predictable path.
When voters passed Jarvis’ landmark initiative in 1978, including its two-thirds vote rule, they were using the power that Gov. Hiram Johnson won for them 67 years earlier, when he led the drive to enact California’s instruments of direct democracy – the initiative, referendum and recall.
So Young is targeting the handiwork of both of these giants of California history. He claims that Johnson’s initiative process couldn’t be used to adopt Jarvis’ reform making it harder for politicians to raise taxes.
Enacting a supermajority rule, the lawsuit says, amounted to a constitutional “revision,” not a mere “amendment.” Case law defines a “revision” as, essentially, a redesign of government, a far-reaching change that must be approved by the Legislature (with two-thirds majorities) in tandem with voters, not by the people alone – i.e., not through the initiative.
It isn’t hard to show how Young’s argument stands constitutional concepts on their head.
But first, a roster of key players.
Young’s lead lawyer is William A. Norris, a retired judge of the Ninth Circuit and prominent in the L.A. business and legal communities. He is a veteran foe of Proposition 13, having helped spearhead the failed 1978 challenge, Amador Valley Joint Union High School District v. State Board of Equalization – about which, more later.
On the other side, the defense of the two-thirds requirement is headed by its author’s namesake organization – the Howard Jarvis Taxpayers Association. HJTA stepped in because of Young’s interesting choice of “defendants.” He filed against the Secretary of the State Senate and the Assembly’s Chief Clerk. Obviously, neither of them could be counted on to defend a rule that puts a leash on their employers, so the Jarvis folks successfully asked the trial court for permission to intervene and represent Proposition 13 and the tens of millions of Californians it protects. HJTA went on to beat Young on the merits in Superior Court, and he appealed.
My own organization, Pacific Legal Foundation, has come in with friend of the court support, as part of our own long tradition of defending taxpayer safeguards.
Our amicus brief explains how Young’s arguments have things upside down. As my colleague, PLF attorney Jennifer Fry, has written, “it is the Young lawsuit that would re-work — ‘revise’ — our structure of government.”
How? By dramatically shrinking voters’ constitutionally recognized authority. The right of initiative has always extended to tax issues. As the state Supreme Court put it in Rossi v. Brown (1995), “When the statewide initiative power was added to the Constitution in 1911 … taxation was not only a permitted subject for the initiative, but was an intended object of that power.”
Rossi went on to explain that the initiative power can be used to repeal taxes. (The case dealt with a local initiative, but the court cited the history of the statewide initiative to make its point.)
The same rationale permits voters to enact the two-thirds rule. If they can strike a tax after the fact, it’s only a difference in timing, and arguably a lesser exercise of voters’ authority, to create procedural hurdles for new taxes in the first place.
The Constitution bars the Legislature from repealing or amending an initiative, unless the initiative specifically allows it. In other words, voters can exclude the Legislature from entire areas of public policy. If they can do that, merely creating new rules for lawmaking in the policy area of taxation is well within their constitutional power.
Howard’s debt to Hiram
Howard Jarvis revered the right of initiative. “[I]f we did not have the right to petition in California, the shot that was heard around the world on June 6, 1978″ (when voters passed Proposition 13) “would never have happened,” he wrote in I’m Mad as Hell, the book he published the following year.
He considered the voters’ need for a route around the special interests to be as great in his day as in 1911, when Hiram Johnson was challenging the railroad lobbyists’ grip on government. The modern era’s successor to the Southern Pacific, Jarvis suggested, is the government union: “If the public employee unions can elect their bosses to office, the general public is screwed, blewed, and tattooed.”
In fact, his timing in introducing the two-thirds rule probably wasn’t coincidental. Proposition 13 was enacted just a year after state employees (in 1977) were first allowed to organize for collective bargaining. Unionizing the public sector created a powerful, perpetual lobbying force for more taxes; Jarvis’ supermajority rule offered taxpayers some new protection as a counterbalance.
There’s good news from last week’s oral argument at the Second District Court of Appeal in Los Angeles. The three-judge panel was “dismissive” of Young’s lawsuit, according to some who were there. In large part, this is because the state Supreme Court’s Amador Valley ruling, 34 years ago, upheld Proposition 13 against the same claim – that it impermissibly “revised” the Constitution.
However, the language of Amador focused on the property tax provisions, so Young’s suit argues that the two-thirds rule should be considered on its own. Even if the Court of Appeal rules against the challenge, Young’s aim has always been to get it before the state Supreme Court.
Courage — or gall?
Los Angeles Times columnist Jim Newton has written that the High Court will show “courage” if it accepts Young’s case and strikes down Jarvis’ supermajority rule.
“Chutzpah” would be more like it.
I can’t see the current court possessing that quality. The justices have shown clear understanding of voters’ constitutional prerogatives and the courts’ duty to protect them.
So, if they do eventually end up taking Chancellor Young’s lawsuit, it’s likely they’ll do what law and logic demand – take him to school.
Otherwise, we could all be “screwed, blewed, and tattooed.”