Surprise Attack on Proposition 13

In perhaps one of the most brazen political moves in California history Democrat leadership last week unveiled a budget proposal that would shred the California Constitution by raising billions of new taxes without the required two-thirds vote.

The tax hikes in the proposal would include a 2.5% surcharge on anyone paying personal income tax an additional three quarters of one percent sales tax an oil severance tax and replacement of current taxes on gas with even higher "fees."

We have no idea who is providing legal advice to the Democrats but they should have been informed before launching this silly proposal that not only would a lawsuit be inevitable the challenge would also succeed in preventing the taxes from ever being imposed.

What are the Democrats thinking? The two-thirds vote requirement one of the most important provisions of Prop. 13 clearly provides that "any changes in state taxes enacted for the purpose of increasing revenues collected pursuant thereto whether by increased rates or changes in methods of computation must be imposed by an Act passed by not less than two-thirds of all members elected to each of the two houses of the Legislature."

This language in Prop. 13 is 30 years old. Did the liberal legislative leadership just discover it? On its face any attempt to circumvent this requirement is going to look suspicious at best. Nor is this language narrowly crafted. It applies whenever a statute is enacted for the purpose of raising revenue.

Moreover even if the language wasn’t clear dozens of reported California cases support the position that this proposal is unconstitutional. Prop. 13 the courts have ruled is to be liberally construed to effectuate its purposes. In other Prop. 13 cases the courts have said that voter intent must be the guide on issues of interpretation: "The Legislature is not always enamored with initiative measures enacted by the voters. The Legislature ought not to be able to frustrate the intent of the electorate by enacting statutes that frustrate the popular will. Consequently … we will continue to give greater significance to the will of the electorate." Hoogasian Flowers v. State Bd. of Equalization (1994).

To suggest that the intent of the voters was to permit this transparent end-run doesn’t even pass the laugh test.

In short the Democrat leadership has really stepped in it. The immediate outrage from the public has been vocal and harsh — and has only just started. From the calls coming into our offices and into talk radio the citizenry is ready to grab their pitchforks and torches. Voters understand that which inexplicably has escaped Democrat leadership. This drill is a direct assault on the California Constitution that will not be tolerated and any legislator who votes for this is violating their oath of office.

What is even more amazing is that this ploy might backfire on the power-grabbing majority party in two ways. First they could lose the tax hikes in court eliminating their intended billions of dollars in new revenue. But the linchpin of this scheme is a massive increase in a gas "fee" of 39 cents per gallon that consumers would pay at the pump. And while the constitution does not permit a referendum of a "tax" there is no such prohibition against a statute which imposes a "fee."

Political consultants and signature-gathering firms have quickly expressed interest in a potential referendum campaign. They rightfully see it as a slam dunk. (Signatures could easily be gathered at gas stations as angry consumers fill up their tanks). If a referendum qualifies for the ballot it immediately suspends the operation of the statute until the issue is resolved at the ballot.

Thus the crafters of this too-clever-by-half scheme may want to re-think their strategy. They could lose in court on the tax hikes and lose with the electorate on the gas "fee." While they probably believe that this outcome would be tragic the taxpaying public would probably view it as poetic justice.

Jon Coupal is President of the Howard Jarvis Taxpayers Association — California’s largest taxpayer organization — which is dedicated to the protection of Proposition 13 and promoting taxpayers’ rights.