"Pay First" Rule Does Not Apply To Local Taxes

In City of Anaheim v. Superior Court, the Court of Appeal ruled that the "pay first" rule embodied in Article XIII, Section 32 does not apply to local taxes. That rule requires a taxpayer seeking to challenge a tax to pay the tax first and file a lawsuit second. The court also held that there was no general public policy requiring the payment of taxes before litigation to make the rule applicable where the local tax at issue did not have a "pay first" provision and the tax had never been collected.

Court Commissioner Can Summarily Deny Habeas Petition

Article VI, Section 22 of the Constitution authorizes the Legislature to authorize superior courts to appoint commissioners to perform "subordinate judicial duties." Does this extend to summarily denying petitions for habeas corpus filed by state prisoners? The Court of Appeal for the Third Appellate District has said "yes," in Gomez v. Superior Court (here). The rationale is that the constitutional provision was intended to give the Legislature power to authorize commissioners to perform the duties they had prior to 1966, when this portion of the constitution was revised, and these duties included summarily denying petitions for habeas corpus. The court also relied on cases holding that mandate proceedings do not result in a "cause" that requires oral argument until an alternative writ or order to show cause issues.

This case may be right on logic, but it's a horrible result. Indeed, even the Attorney General sided with the petitioners on this one. The opinion seems driven more by concern for small counties with few judges but large prisons than the right of a prisoner to have his claims reviewed by a "real" judge. Indeed, the opinion starts out with the observation that "State prison inmates are a litigious bunch when it comes to filing writ petitions challenging conditions of confinement or raising a multitude of other grievances." It's downhill from there. The California Supreme Court should grant review and revisit its prior decision in Rooney v. Vermont Investment Corp., 10 Cal. 3d 351 (1973), the principal basis for the Court of Appeal's holding.

Is California Forward Targeting Sinclair Paint?

In 1997, the Supreme Court decided, in a case called Sinclair Paint v. Board of Equalization, that the Legislature can raise fees without the two-third vote required for raising taxes. A proposed initiative constitutional amendment sponsored by California Forward seeks to circumscribe that authority, at least where the Legislature is seeking to replace lost tax revenue. Does this circumscribe Sinclair? Calbuzz reported last week that it did; here is California Forward's response.

AG Rejects Legislature's Effort re Pay Cut

The Los Angeles Times reports here and here. The end result: lawmakers will have their salaries cut by $20,917 annually while California's 12 top state officials will see reductions of at least $28,644 apiece. And here is the article from the Sacramento Bee.

California Constitution Does Not Offer Broader Protection For Public Employee Speech

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court held that public employee speech made pursuant to an employee's official duties enjoys no First Amendment protection. In Kaye v. Board of Trustees (here), the Court of Appeal has held that public employee speech enjoys no broader protection under the Free Speech Clauses of the California Constitution. The court held that neither the language nor the history of the California Constitution supports a broader interpretation, nor did the U.S. Supreme Court's decision in Garcetti diminish previously-granted rights or engender a firestorm of judicial and academic criticism. Moreover, the California courts have routinely followed federal decisions when it comes to public employee speech rights.

This decision raises an important issue that the California Supreme Court might well review. However, one issue is that Kaye is representing himself, which could make the Court reluctant to intervene. And it doesn't look like there were any amici in the Court of Appeal. Where are the ACLU and the public employee unions?

Legislature's Attempt To Amend Prop. 36 Held Invalid

Proposition 36, enacted in 2000, requires treatment rather than incarceration for certain drug possession offenses. It also provides that the measure can be amended by the Legislature, but only by a two-thirds vote and only if the amendment is "to further the act" and is "consistent with its purposes. (Disclosure: I helped draft Prop. 36.) In Gardner v. Schwarzenegger (here), the Court of Appeal held that SB 1137 was an invalid amendment to Prop. 36. As the court explained, the provisions of the bill "permit incarceration of defendants who violate probation in circumstances where incarceration is prohibited by Proposition 36, and narrow eligibility for Proposition 36 diversion." The court had no difficulty finding this irreconcilable with the pro-treatment, anti-incarceration purposes of the initiative.

One interesting provision of SB 1137 is that it provided that the entire bill would be submitted to the electorate if any of its provisions were held invalid. (The Legislative Counsel had opined that the bill was an improper amendment to Proposition 36.) The court held this provision unconstitutional, too, as an invalid referendum of an already-enacted statute. Nor could this provision be upheld under the constitutional provision permitting the Legislature to put amendments to initiatives on the ballot, because the statute had already taken effect (although it was immediately enjoined).

This decision seems clearly right. I see no reason why it should be reviewed by the California Supreme Court.

The Claremont Institute On The Con-Con

Patrick Collins of the Claremont Institute has written this interesting op-ed on the con-con. His message: the con-con is unlikely to paper over deep divisions over the reasons for California's ongoing budget problems and the proposed solutions. Hard to disagree with that. And a new poll, reported here, finds voters skeptical over the usual liberal solutions to the budget mess.

Who Has Authority Over Legislative Pay And Perks?

The Los Angeles Times reports here on an impending controversy between the Citizens Compensation Commission and the Legislature. The Attorney General has been asked to weigh in. Here is an article on the same subject from the Sacramento Bee.

Legal Questions on the Con-Con

Professor Karl Mannheim of Loyola and two of his colleagues raise some interesting issues on the con-con initiatives in this op-ed from the Los Angeles Times. Among them: whether the measure's limits on the con-con's scope are constitutional and whether permitting the voters to call a convention is a "revision." I think the answer to the first question is "yes" and the answer to the second is "no."

Judgment Awarding Too Much Post-Judgment Interest Against State Is Void

In 311 South Spring Street Co. v. Department of General Services (here), a judgment was awarded against the state carrying post-judgment interest at 10%. The state raised no issue concerning the interest in the first appeal. Then, on remand, the state woke up and contended that the permissible rate of post-judgment interest was only 7%. The court held that the state was right and that the previously-appealed and final judgment imposing the higher interest rate was void and could be collaterally attacked at any time.

Court Construes Proposition 60

In Wunderlich v County of Santa Cruz (here), the court asked and answered the following question: "When an applicant for Proposition 60 tax relief builds a new residence on land purchased years earlier, is the value of the replacement dwelling calculated using the land’s current value (its fair market value when construction is complete) or the land’s historic value (its base year value under Proposition 13)? We conclude that the land must be valued currently, as of the date that construction of the structure is completed." While there was both a separate concurring and a dissenting opinion, the case involves a fairly narrow issue of property tax law. So it may be an unlikely candidate for Supreme Court review.

Will A Criminal Justice Initiative Ever Fail To Satisfy The Single-Subject Rule?

Probably not, under Manduley v. Superior Court, 27 Cal. 4th 537 (2002), which upheld the constitutionality of Prop. 21. (I filed an amicus brief on behalf of the ACLU in Manduley.) It certainly won't be Proposition 83, which was upheld against a single-subject challenge in People v. Rotroff (here). Indeed, the appellant conceded that all the provisions of the measure "relate broadly to sex offenses." The court had little difficulty finding no constitutional violation.

Court Upholds Constitutionality of Prop. 63

In Jensen v. Franchise Tax Board (here), the Court of Appeal upheld the constitutionality of Proposition 63, a statutory initiative passed in 2004 that imposes a tax on incomes over $1 million to pay for expanding mental health services. The court held, not surprisingly, that "[a]n income tax may be rationally based on a taxpayer’s income level and ability to pay, and there is no need to show that a particular taxpayer personally benefits from a tax assessed for the public good." The court also held, again unsurprisingly, that "[t]axpayers earning more than $1 million annually do not comprise a 'suspect class' requiring a strict scrutiny constitutional analysis."

Part of Prop. 63 requires the State to maintain funding for mental health services at 2003 levels. The plaintiffs contended that this required the measure to be enacted as a constitutional amendment, not a statutory initiative. But the Court rejected the argument, stating that the funding requirements in Prop. 63 were not "cast in stone," as the plaintiffs contended. Because Prop. 63 can be amended by a two-thirds vote of the Legislature to further its purposes, it did not put the Legislature in an unconstitutional strait-jacket: "[i]f the mental health services funding requirements prove too onerous, the electorate or the Legislature may vote to diminish them in the future."

The Battle Over The Con-Con Starts

Here is an editorial from the Orange County Register attacking the con-con as a "sneaky" way to amend Prop. 13. It's right in one respect: there are no painless, bipartisan ways to solve California's budget crisis or its structural problems of governance.