The Great California Tax Battle of 2024 - Part 2
Gavin Newsom and the Leadership of the State Legislature v. Chief Justice Rose Bird
On Wednesday, LA Times columnist Michael Hiltzik wrote a scathing editorial railing against the Taxpayer Protection and Government Accountability Act (the “TPGA”), a constitutional amendment to the California Constitution currently scheduled for the November 2024 ballot.1
While the editorial is pure dreck,2 making several mis-statements about what the proposed constitutional amendment will do, one sentence in particular stood out. Hiltzik wrote:
The initiative has been scheduled for the November ballot and will appear there unless the state Supreme Court throws it off; that’s what the measure’s critics have asked, citing numerous technical reasons.
This sentence is misleading.
There are not “numerous technical reasons” for removing the TPGA from the ballot. It gathered the required signatures and followed all procedural rules under the California Constitution and the Elections Code to earn its placement on the ballot.
Instead, there are two arguments that have been advanced, only one of which is an actual constitutional argument. Those two arguments are:
The TPGA constitutes an impermissible revision of the California Constitution as opposed to a proper constitutional amendment.
The TPGA would impermissibly impair essential government functions.
Hiltzik’s misleading sentence, however, reminded me of another broader point about the current lawsuit to remove the TPGA from the ballot. It’s extreme.
What Governor Newsom and the State Legislature are in reality asking the Court to do is overturn all of its past precedents interpreting ballot measures. Moreover, they are asking the Court to fundamentally change its role in the structure of our government.
If Court sides with the Governor and the Legislature, the Court would abandon their constitutionally proscribed judicial role and instead would make themselves a political actor, engaging in politics and policy making, unrooted in law.
It might be tempting to view the battle over the TPGA as merely a right-wing v. left-wing battle, where support for keeping the TPGA on the ballot is a “conservative” position and removing the TPGA from the ballot is a “progressive” position.
Certainly, many of the self-described journalists who support Governor Newsom’s lawsuit and oppose the TPGA would agree with that characterization.
But it’d be inaccurate.
That’s because Governor Newsom and the State Legislature are making legal arguments against the TPGA that not only were rejected in numerous previous Court decisions but were also previously rejected by none other than former California Supreme Court Chief Justice Rose Bird.
Some readers may be unfamiliar with her.
Without giving an entire biography, Chief Justice Bird was a very progressive Justice appointed by Governor Jerry Brown in 1976 as the first woman to serve on the Court. She had never served as a judge before her appointment as Chief Justice of the California Supreme Court. She ruffled many feathers with her appointment, judicial philosophy, and Court management skills.
Arguably, she was the most ideologically left-wing Justice to ever serve on the California Supreme Court. During her time on the bench, she often stretched the boundaries of existing constitutional and statutory law, even if it meant dissenting rather than leading her Court.
She also took many politically unpopular stances. On several occasions, she wanted to strike down ballot measures that had passed by large margins. Her politically unpopular opinions ultimately cost her the job. Voters removed her from the bench in 1986 after what can best be described as a successful right wing witch hunt.
To this day, she has her detractors and defenders. But however one feels about Chief Justice Bird, her prior opinions demonstrate the TPGA is fully constitutional.
I. Impermissible Revision
Governor Newsom and the State Legislature are asking the California Supreme Court to remove the TPGA from the ballot because they argue it impermissibly revises the California Constitution.
There are two ways to amend the California Constitution:
A constitutional amendment may be proposed by two-thirds of both the California State Assembly and the California State Legislature.3
A constitutional amendment may be proposed by an initiative petition signed by a number of registered voters equaling no less than eight percent of the total numbers of votes cast for Governor in the last gubernatorial election.4
Once the measure is qualified for the ballot, if it earns a majority of the votes cast on the question at the next election (50%+1), it becomes law.5 The TPGA is a proposed constitutional amendment to the California Constitution.
However, a constitutional amendment cannot be used to revise the Constitution.6
A revision of the California Constitution can only occur if (1) two thirds of both the State Assembly and State Senate propose a constitutional convention, (2) a majority of voters agree to a constitutional convention, and (3) a majority of voters ratify whatever is agreed upon at that constitutional convention.7
A constitutional revision constitutes “systematic, comprehensive constitutional renovation and reform” to the California Constitution.8 A revision “must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution.”9
Thus, “in order to constitute a qualitative revision, a constitutional measure must make a far-reaching change in the fundamental governmental structure or the foundational power of its branches as set forth in the Constitution.”10 If a constitutional amendment is a revision, it will be struck down as unconstitutional.11
While many of California’s more controversial ballot measures amending the state constitution have been challenged as improper revisions, only two constitutional amendments - one proposed and one enacted by the voters - have ever been held to be impermissible revisions.12
Shortly after its initial passage in 1978, Proposition 13,13 which enacted numerous and profound changes to the Constitution’s tax law provisions and had a massive financial impact on public services, faced numerous constitutional challenges, including the claim that it impermissibly revised the California Constitution.14
In a 6-1 vote, the California Supreme Court rejected the challenges and upheld Proposition 13.15 Chief Justice Bird was the lone dissenter.16
However, while she believed Proposition 13 was unconstitutional, Chief Justice Bird rejected the argument that Proposition 13 was an impermissible revision to the California Constitution.17 She was very clear that Proposition 13 was something that voters could permissibly pass as an amendment to the California Constitution.18
She instead believed that Proposition 13 violated the Equal Protection Clause of the Fourteenth Amendment.19 Years later, United States Supreme Court Justice John Paul Stevens would agree with her argument.20 Though the rest of the United States Supreme Court did not, upholding Proposition 13 against an Equal Protection Clause challenge in an 8-1 decision.21
Proposition 13, which made multiple and profound changes to the California Constitution’s taxation provisions, provides a useful comparison to the TPGA.
Proposition 13 (1) permanently lowered the real property tax rate, (2) changed how the government determined the assessment value of real property for property taxes, (3) required a 2/3rds vote in the Legislature to pass new or increase existing taxes, and (4) required a 2/3rds vote of voters in the applicable district to approve of any new or increased special taxes proposed by a local government.22
In contrast, the TPGA impacts no pre-existing state taxes and contains far more minor provisions that clarify confusing areas of constitutional tax law.23 If the TPGA is an impermissible revision, then certainly Proposition 13 was one as well. Yet, this is a position that the California Supreme Court unanimously rejected in 1978.
Another example exposing the current arguments against the TPGA as meritless was the legal challenge against the controversial Proposition 8 (1982).24
Proposition 8 (1982) was known as the “Victims Bill of Rights”.25 This constitutional amendment made a number of changes to existing criminal law that severely limited the rights of criminal defendants.26
The California Supreme Court narrowly upheld Proposition 8 (1982) against multiple challenges, including that it impermissibly revised the California Constitution.27 Chief Justice Bird, a former public defender, dissented.28
However, her dissent, if adopted by today’s Court, would not lead to the conclusion that the TPGA is unconstitutional.
Her dissent mostly argued that Proposition 8 (1982) violated the California Constitution’s single subject rule.29 On the issue of whether Proposition 8 (1982) constituted an impermissible revision, while she argued one part of it constituted an impermissible revision, she rejected the main arguments that the law constituted a revision in its entirety.30
Governor Newsom and the State Legislature argue that if enacted, the TPGA will cause major budget problems for California. Most of the briefs they have filed are devoted to dire predictions of what the TPGA will do to the budgeting process.
That very same argument was made against Proposition 8 (1982) when those seeking to have it struck down as a revision argued that it would drain the financial resources of public schools.
What was Chief Justice Bird’s response?
These predictions may well be accurate, but they do not justify the legal conclusion that Proposition 8 amounts to a constitutional revision, rather than an amendment, under the present state of the case law.
Moreover, each argument is premised on assumptions concerning matters that are outside the four corners of the initiative measure itself, i.e., that there will be insufficient resources to cope with the changes mandated therein. No hard facts have been produced. This court has been and should continue to be reluctant to declare an initiative measure to be a revision based solely on speculation as to its fiscal effect.
Initiative measures frequently have an impact on the public fisc, and hence on matters of constitutional concern. If that reason alone were sufficient to deem a measure to be a revision -- and forbidden by article XVIII -- then the power to improve our laws through the initiative process would be stringently curtailed.31
The TPGA could have negative budgetary impacts in the future. This is especially true if it makes it harder to pass new taxes and increase existing ones. However, the argument that this is sufficient to strike down an amendment as an impermissible revision is one that has been unanimously rejected by the California Supreme Court.32
II. The Impermissible Impairment of Essential Government Functions
Governor Newsom and the State Legislature are asking the California Supreme Court to remove the TPGA from the ballot because they argue it impermissibly impairs essential government functions.
This is a very rarely utilized legal doctrine has been invoked in the past against local ballot measures.33 As the California Supreme Court has explained, “this principle serves to invalidate an initiative which, in limiting one governmental power, impairs or destroys the ability of government to exercise a different and more essential power.”34
It is uncertain that this very rarely invoked doctrine applies to statewide ballot measures.35 Moreover, even if it applied to statewide ballot measures changing statutes, it is uncertain that it applies to constitutional amendments like the TPGA.36
For the purposes of argument, the Court assumed that the doctrine applied in the challenge to Proposition 8 (1982) but ultimately rejected the argument.37
It is clear that this argument did not persuade Chief Justice Bird, who declined to even address the argument in her dissent. As much as she disapproved of Proposition 8 (1982), the argument that it impaired essential government services clearly did not persuade her.
In hindsight, it makes perfect sense why she did not embrace the theory that the Court could strike down a constitutional amendment on the basis that it impaired essential governmental functions.
If the Court were to ever do so, it would raise major separation of powers issues.38 Holding that a constitutional amendment could not be enforced, not because of a procedural defect in its enactment or a violation of the federal constitution, but because it impaired government services amounts to a policy determination - a policy determination made by the Court.
The Court would essentially place itself above the democratically elected branches of government and declare itself the arbiter of what is ultimately good or bad for the people of California. And not just on constitutional amendments but on all duly enacted laws. The Court would have free reign to rewrite laws as it saw fit because it could make its own policy calls.
Here, Governor Newsom and the California State Legislature are asking the Court to do just that. They want the Court to decide that as a matter of public policy that the TPGA is a bad idea and therefore should not be enacted. Moreover, they want the Court to decide that it is such a bad idea that the voters should not even be allowed to debate the concept.
Now, some self-described “journalists”, including employees at the LA Times, probably believe it should be the role of courts to do public policy. Especially if it would mean that the courts make public policy decisions they personally favor like stopping the TPGA from becoming law.
But that’s a really stupid idea, not to mention a dangerous one.
Making public policy determinations is not the role or the function of the judicial branch.39 Courts have the power to say what the law is, not to say what the law should be.40 Moreover, courts lack the capacity to engage in public policy making decisions regardless of how judges personally feel about laws in question.41 Those are functions that are left to the political branches of government.42
Imagine the consequences if it were otherwise. Imagine any of the great yet controversial programs enacted by Democrats over the past century - social security, Medicare, Obamacare, etc. Imagine if courts had been able to strike them down simply because they disagreed with the laws as a matter of public policy.
Chief Justice Bird likely saw that when both Proposition 13 and Proposition 8 (1982) were both before the Court. Because though she would have struck down both, she rejected the policy and political arguments invoked against both laws.
These policy and political arguments are the arguments - the only arguments - that Gavin Newsom and the State Legislature have offered against the TPGA. And they are arguments that the Court unanimously rejected.43
III. A Final Word
There is a deep concern about the current state of American democracy as well as the integrity of the courts. In 2020, the courts largely rejected invitations from Donald Trump to shut down democracy in order to benefit him.
He had clearly lost re-election but not wanting to leave office, he and his lawyers invented bizarre new theories of law and went to court hoping that because most of the federal judges and Supreme Court Justices were Republicans and because he had appointed many of them to their current positions, they’d rule in his favor.
Trump asked the courts to abandon past precedent and accept novel theories of law, just for him, to keep him in office even though the voters had decided otherwise.
Here, Gavin Newsom and the State Legislature are effectively asking the California Supreme Court to do the same thing as Trump did in 2020 (and continues to do in numerous criminal and civil trials to avoid jail and civil liability)). Just in a slightly different way.
While not concerned about over-ruling the electorate to stay in office, they are concerned with an electoral outcome that they do not want.
They believe that if the TPGA passes, there are taxes that they want enacted or increased that voters, once apprised of what they are being asked to vote for, will no longer vote for. There are laws they want to see passed at the ballot box that may no longer pass because they will be subject to increased disclosure requirements.
And because the TPGA might pass at the ballot box, they argue that the TPGA needs to be removed from the ballot. For the voters’ own good to protect the voters from themselves.
The Court should toss aside all of its past precedent. Just for them. Because ultimately, in their opinion, they (the same people who just enacted the EBONY Alert Law) are far smarter and far better educated than the voters are. Their opinions should reign supreme over what the electorate might potentially want.
Their best hope in this lawsuit succeeding is predicated on the fact that 6 of the 7 Justices are Democratic appointments including 3 appointed by Governor Newsom.
It’s not too different from the hope that Trump and his legal team had in 2020 in using the federal courts to stay in office. Republicans had appointed 6 out of 9 United States Supreme Court Justices including 3 appointed by Trump.
When Chief Justice Bird argued that Proposition 13 and Proposition 8 (1982) should be struck down as unconstitutional, she advocated for the Court to toss aside the overwhelming will of the voters. However, even if one disagrees with her dissenting opinions, her arguments were principled, rooted in constitutional theory and precedent, and demonstrated a commitment to the rule of law.
If one bothers to read her opinions in those cases, her reasoning expressly rejected the political arguments that Governor Newsom and the State Legislature are making now against the TPGA. Because even as she advanced a constitutional interpretation that invalidated successful ballot measures, she understood the limits of the Court’s power.
If Governor Newsom and the State Legislature are hoping that partisan Democratic loyalty will help remove the TPGA from the ballot, my hope and expectation is that these appeals will be unpersuasive to the Court, who will hopefully adhere to past precedent and reject this meritless suit.
The federal courts rejected Donald Trump’s attempts to use the courts to stop democratic outcomes he personally disfavored. For the sake of the integrity of the judiciary, I hope the current California Supreme Court will do the same and allow the TPGA to proceed to the ballot.
https://www.latimes.com/business/story/2024-02-14/column-taxpayer-protection-or-taxpayer-deception-a-new-ballot-measure-aims-to-destroy-the-california-state-budget
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