Friday, July 11, 2003
Solving the California budget crisis: California's Prop. 13, along with having the effect of reducing property taxes, also required a 2/3 majority in order to pass a state budget. This requirement is one fo the primary causes of the state budget stalemate because, even in this Democrat-dominated state, there are enough Republicans in the legislature that a few of them are needed in the Assembly and Senate to reach the two-thirds threshold.
The crux of the budget battle is that Republicans don't want to raise taxes, but instead borrow and cut spending to bridge the shortfall. The Democrats don't want to cut spending, but instead raise taxes and fees to bridge the gap.
So, aside from compromise, how is it possible to resolve these competing views?
Well, the Democrats can go to court -- the State Supreme Court -- and see if they can get it to mimic Nevada's highest court. [Adobe Acrobat Reader required.]
The aforementioned decision, Guinn v. Legislature, was ably analyzed by UCLA law professor/blogger Eugene Volokh over at his Web site the Volokh Conspiracy. Volokh's damning summation:
Finally, if the court is willing to nullify "general procedural rules" so that it can order the legislature to fund education, why stop at the 2/3 supermajority? What if it turns out that the Legislature can't even get a simple majority for a tax increase? Under the court's reasoning, it should nullify the 50%+1 requirement, too -- after all, the simple majority requirement is also a mere "procedural requirement that is general in nature." Or, better yet, why not order the governor impose the taxes himself? The requirement that taxes be imposed by elected legislators is also just a "procedural requirement that is general in nature." But wait -- that would be inefficient. Why doesn't the court just impose the taxes itself, and order government officials to just seize the property from Nevadans' bank accounts? The only thing that stops it is also a "procedural requirement that is general in nature," and apparently those aren't really binding any more.
This really is shameful, and I do not use the term lightly. Yes, I know that there are lots of claims of judicial overreaching -- but there are at least various defenses based on tradition, precedent, ambiguous constitutional text, or whatever else. Here, I see no such defense: Just the court's willingness to completely ignore the very constitution that gives it power.
This is scary. I've often complained of various degrees of what I see as legislating from the judiciary, but I cannot remember anything as brazen as what the Nevada Supreme Court has done. Our courts have undergone a shift in recent decades where judges no longer see themselves as upholders of law, but as an elite, enlightened second legislature, ready to right the wrongs of elected politicians. The Nevada decision is the latest, and most outrageous example of this mindset.
It's also interesting to read the different takes on the decision by the two Las Vegas newspapers, the Las Vegas Sun and the Las Vegas Review-Journal. [Full disclosure, seven years ago I applied for a job at the Review-Journal and was turned down.]
The Sun applauds the court's decision and said it was right to ignore the 1996 amendment to the state Constitution that set the 2/3 majority to raise taxes. Apparently the ends justify the means when the Sun agrees with the end.
The Review-Journal, on the other hand, takes a more realistic and sensible view.
On Thursday, six justices of the Nevada Supreme Court -- with a lone justice dissenting -- drooled all over the state Constitution, wadded it up and tossed it in the trash.
Justice Bill Maupin dissented. More power to him. But that only one member of the high court didn't treat the state's guiding document as a roll of Charmin should outrage every resident of this state. Even those who support huge tax hikes. Even the now-chortling Democratic lawmakers who brought us to this point by refusing to compromise.
Here in California, judges may be less likely to support such an extra-legal measure because of still-fresh memories of Chief Justice Rose Byrd's re-election defeat at the hands of Californians angry about her opposition to the death penalty.
It probably won't happen this year, but when politicians get desperate enough and courts get activist enough, we'll have a "democracy" like Iran's, where ultimate power comes not from the people, but from "mullahs" on the bench.