Jerry Brown’s Election Grab Goes to Court: The Rule of Law or the Divine Right of Kings?

Tony Quinn
Editor, California Target Book

The Divine Right of Kings was a great idea, in the 18th Century.  “L’etat, c’est moi” “I am the State,” said King Louis XIV.  Now Gov. Jerry Brown and the California Legislature have tracked Louie in their defense of rigging the November election to help Brown pass his tax increase initiative.

They did this by using a so-called “budget trailer bill”, to place the Brown tax initiative at the top of the heap of initiatives on the November ballot.  Brown’s political consultants believe that placement is vital for it to pass; if the legislature had not acted, it would be in the middle of the ballot next to two other tax increase measures, not a good place to be.

But the legislative Democrats faced a problem – they could not do this with a regular bill because it would not take effect in time, and they could not pass an urgency statute because that would require Republican votes that were not there.

So they concocted a fiction that they could do this with a “budget trailer bill,” a bill intended to statutorily effect budget changes.  Problem is that they must now defend these shenanigans before the 3rd District Court of Appeal that will hear a challenge to their scheme later this month.  The legislature’s response is “l’etat, c’est moi,” we can do it because we are all powerful, and you cannot stop us.

Well, let’s just help the court decide if Legislative Louie can get away with this.  First question, what’s a “budget trailer bill?”  A generation ago, Professors Charles Bell and Charles Price answered that in their landmark work, California Government Today: “At the same time the budget is being heard in the legislature, a trailer bill is prepared which amends state laws needed to accommodate changes as required by the budget.  Because the budget bill does not have the authority to change a law already on the books, a separate bill must be passed by the legislature and signed by the governor to make the needed amendment.”

Pretty clear isn’t it, and Gov. Brown’s Department of Finance web page says the same thing today: “Trailer Bill Language is the implementing language of the California State Budget Bill.”  And if Legislative Louie could not understand that, there is Proposition 25 of 2010 that allows the legislature to pass the budget and its trailer bills by a majority vote.  “Other bills providing for appropriation related to the budget bill (that is, the trailer bills) shall consist only of bills identified as related to the budget in the budget bill passed by the legislature.”

Well, was reordering the state ballot to help Brown’s tax increase a “bill identified as relating to the budget in the budget bill passed by the legislature”?  No, of course not; they had not even thought up the reordering at the time they passed the budget.  The legislature tried to get around this by using a “spot bill”, that is one with no language in it, as their vehicle, and then adding a $1,000 appropriation so they can say it relates to the budget.  They then called this concoction a “budget trailer bill.”  It is like the legislature saying the moon is made of green cheese and expecting us to believe it is made of green cheese because the legislature says it is.

Well, this is why we have courts, and why the great Chief Justice John Marshall decreed two centuries ago that courts can review the acts of the legislature.

So the issue is before the 3rd District Court of Appeal and they face a tough choice: not in declaring this witches brew is not a budget trailer bill, by any reading of the clear language of the law it is not, but in overturning an act of the legislature so important to powerful politicians.  The courts are broke right now and scared of even more budget cuts.  Will this court apply the law or cave to the governor and legislative leaders who hold their own court budgets in their hands.

That is the real issue as this matter is litigated over the next month.  The legislature has piled absurdity upon absurdity as it desperately tries to prop up the unpopular Brown tax increase.  It is vital for them that the courts not stand in their way.

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