Déjà vu in the California courts

April 19, 2012 | By JENNIFER THOMPSON

In 1978, California voters passed Proposition 13, a property tax relief initiative.  Hailed as a “modern Boston Tea party,” Proposition 13 amended the state Constitution to substantially alter California’s system of taxation.  It limited property taxes to 1% of the value of property, prohibited the assessed value of property from increasing more than 2% a year, and conditioned any tax increases at either the state or local level upon a two-thirds legislative vote.  Although the measure passed by nearly a 65% margin, the opposition—mostly government agencies—challenged the initiative claiming that it violated the Constitution.  The California Supreme Court rejected the challenge in a case called Amador Valley Joint Union High School District v. State Board of Equalization.  Now, more than thirty years later, one of the plaintiffs’ attorneys from that original lawsuit, retired 9th Circuit Judge William Norris, has brought a new attack against Proposition 13.

The plaintiff is Charles Young, a former UCLA chancellor.  Young told the Daily Bruin newspaper that if his lawsuit is successful, Democrats could more easily raise taxes to increase the UC system’s budget.  The lawsuit names two ministerial officers as defendants: the Secretary of the California State Senate and the Chief Clerk of the California State Assembly.  Neither has defended Proposition 13 or filed any briefs in this case.  They have no incentive to defend the measure.  As employees of the dominant political party, Proposition 13 makes their lives more difficult by requiring them to garner Republican support before rasing taxes.    Fortunately, the Howard Jarvis Taxpayers Association, a grassroots organization responsible for placing Proposition 13 on the ballot, intervened to defend the measure.  PLF is also filing an amicus brief which emphasizes the people’s political sovereignty and right to amend the Constitution.

This case only challenges Proposition 13’s super-majority vote requirement for raising taxes.  Young and his legal team undoubtedly realized that in light of the Amador decision, the only way to make a non-frivolous (i.e. “non-sanctionable”) argument was to focus on this one part of the measure.  Even so, they are treading on shaky legal ground.  Young’s theory is that the super-majority legislative vote requirement is unconstitutional because of a procedural flaw.  Ever since 1911, voters have had the power to “amend” the state Constitution via the initiative power, but they may not “revise” it.  An amendment is a change “specific and limited” in nature, while a revision is that which “substantially alter[s] the basic governmental framework” of the Constitution. Young maintains that Proposition 13’s super-majority vote requirement is a revision, as opposed to an amendment.

The problem with this theory is that it is extremely difficult to demonstrate that an initiative is a revision.  The California Supreme Court has only ever accepted this argument twice in its history: once in McFadden v. Jordan where the challenged initiative was so extensive it would have added more than 21,000 words to the state constitution; and once in Raven v. Deukmejian where it struck down one part of a criminal justice initiative that would have vested the U.S. Supreme Court with the final say over interpreting the California Constitution.

The Supreme Court’s reticence to interfere with voter initiative measures derives from its reverence for the people’s political sovereignty.  “Declaring it the duty of the courts to jealously guard this right of the people, the courts have described the initiative . . . as articulating one of the most precious rights of our democratic process.”  As a result, courts will “apply a liberal construction to this power whenever it is challenged.”  In other words, “courts in California will do virtually whatever it takes to avoid striking [down] an initiative.”

Young has an uphill battle to try and convince the court to strike down Proposition 13’s legislative super-majority vote requirement — he has already lost in the trial court.  We hope the appellate court will follow suit and dismiss Young’s claim as a matter of legal déjà vu.