Reply In Support Of Petition

CASE NO. S170071

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

HOWARD JARVIS TAXPAYERS ASSOCIATION, et al., Petitioners, v. LEGISLATURE OF THE STATE OF CALIFORNIA, et al., Respondents.

REPLY IN SUPPORT OF PETITION FOR REVIEW

After Denial of Petition for Writ of Mandate by the Court of Appeal, Third Appellate District No. C060795

JOHN C. EASTMAN, No. 193726 ANTHONY T. CASO, No. 88561 Of Counsel Ctr. for Const. Jurisprudence c/o Chapman Univ. Sch. of Law One University Drive Orange, California 92866 Telephone: (714) 628-2500

JONATHON COUPAL, No. 107815 TREVOR A. GRIMM, No. 34258 TIMOTHY A. BITTLE, No. 112300 Howard Jarvis Taxpayers Assn. 921 Eleventh Street Suite 1201 Sacramento, California 95814 Telephone: (916) 444-9950

Attorneys for Petitioners

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................. ii  INTRODUCTION .................................................................................................. 1  ARGUMENT .......................................................................................................... 2  I. ARTICLE III, SECTION 3 DOES NOT PREVENT THIS COURT FROM ENFORCING THE CONSTITUTION................................................................... 2  II. RESPONDENTS’ ACTIONS VIOLATED PETITIONERS’ CONSTITUTIONALLY PROTECTED VOTING RIGHTS................................. 6  III. RESPONDENTS’ ACTION VIOLATES THE GUARANTEE CLAUSE..... 8  CONCLUSION ..................................................................................................... 11  CERTIFICATE OF COMPLIANCE .................................................................... 12  DECLARATION OF SERVICE .......................................................................... 13 

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TABLE OF AUTHORITIES CASES  Amodei v. Nevada State Senate, 99 F. Appx. 90 (9th Cir. 2004) .................. 8 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) ...................... 7 California Radioactive Materials Management Forum v. Department of Health Services, 15 Cal.App.4th 841, 872 (1993) ..................................... 5 Coleman v. Miller, 307 U.S. 433 (1939) ....................................................... 7 Consulting Engineers and Land Surveyors of California, Inc. v. Professional Engineers in California Government, 42 Cal.4th 578, 588 (2007) ......................................................................... 3 County of Los Angeles v. State of Calfiornia, 153 Cal. App 3d 568, 573 (1984) ............................................................... 4 Ex Parte McCarthy, 29 Cal. 395, 405 (1866) ............................................... 3 Gutierrez v. Pangelinan, 276 F.3d 539 (9th Cir. 2002) ................................ 7 In re Battelle, 207 Cal. 227, 255-257 (1929) ................................................ 5 Kelley v. United States, 69 F.3d 1503 (10th Cir. 1995) .............................. 10 Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) .................................. 8 Kevelin v. Jordani, 62 Cal. 2d 82 (1964) ...................................................... 2 Marine Forests Society v. California Coastal Com., 36 Cal.4th 1, 25 (2005) ............................................................................... 3 Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994) ....................................... 7 Mission Hosp. Regional Medical Center v. Shewry, 168 Cal.App.4th 460, 479 (2008) ........................................................... 4, 5 New York v. United States, 505 U.S. 144 (1992) .................................... 9, 12 Oakland Paving Co. v. Hilton, 69 Cal. 479, 489 (1866) ............................... 4

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Pacific States Telephone & Telegraph v. Oregon, 223 U.S. 118 (1912) .... 11 People v. Burt, 43 Cal. 560 (1872) ................................................................ 6 Raines v. Byrd, 521 U.S. 811 (1997) ............................................................. 8 Roe v. State of Ala. By and Through Evans, 43 F.3d 574 (11th Cir. 1995) ...................................................................... 9 Sherman v. Story, 30 Cal. 253, 279 (1866) ................................................... 6 Skaggs v. Carle, 110 F.3d 831 (D.C. Cir. 1997) ........................................... 7 Yolo County v. Colgan, 132 Cal. 26 (1901) .................................................. 6 CONSTITUTIONAL PROVISIONS  Cal. Const. Article III .................................................................................... 5 Cal. Const. Article XIIIA, §3 ........................................................................ 4 Cal. Const. Article XIII, §32 ......................................................................... 5 Cal. Const. Article XIIIA .............................................................................. 8 U.S. Const. Article IV, §4 ............................................................................. 8

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INTRODUCTION The Legislature misunderstands, and thus misrepresents, the argument put forward in the Petition for Review. Petitioners do not suggest that this Court (or any state court) can or should order the Legislature to enact a particular piece of legislation. Yet freedom to exercise the power to legislate cannot be equated with a freedom to ignore the constitution. To be sure, the Legislature may – and in several past instances did – enact laws later found to be unconstitutional. Petitioners do not suggest that the courts should interfere on the Legislature’s perceived prerogative to enact laws that violate the Constitution. This is quite different, however, from arguing that the Legislature is free to ignore procedural commands of the Constitution. The Constitution commands the Legislature – just as it commands the Governor and this Court – to obey specific procedures in exercising its delegated powers. The courts have consistently ruled that the Legislature must obey those procedures, regardless of whether its actions fall within its inherent powers. Petitioners in this case seek nothing more and nothing less than recognition of this long-standing principle.

The

Legislature must follow the Constitution. No rule of constitutional law, and certainly no provision of the Separation of Powers Clause, empowers the Legislature to act outside the strictures of the Constitution. The whole point of the Separation of Powers Clause, after all, is to uphold the rule of law. 1

The Constitution was violated once legislative leaders determined to ignore the specific procedures of the Constitution regarding the votes necessary to advance a measure increasing taxes. At that moment, the constitutional rights of petitioners were breached. The constitutional injury was complete.

Whether the tax measure is signed into law and

implemented, thus visiting new constitutional injuries on a vastly increased class of citizens, is irrelevant. Petitioners seek review by this Court to vindicate their rights under the Constitution to have their votes accorded the weight assigned to them under the state charter. ARGUMENT I ARTICLE III, SECTION 3 DOES NOT PREVENT THIS COURT FROM ENFORCING THE CONSTITUTION The Answer to the Petition for Review misunderstands the issue in this case, and thus spends time dispatching various straw-man arguments. This case is not about ordering the Legislature to refrain from enacting unconstitutional legislation. Thus, cases such as Kevelin v. Jordani, 62 Cal. 2d 82 (1964) are simply irrelevant to this analysis. To be perfectly clear, petitioners do not ask this Court to intrude on the Legislature’s power to enact unconstitutional legislation. Petitioners understand that the power of

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judicial review is more than sufficient to protect the Constitution against such activity. Instead, Petitioners bring this case to ask the courts to enforce constitutionally mandated procedures. While the Legislature may have the power to exercise the legislative power in any manner – including the enactment of measures that offend the Constitution – it does not have the power to ignore procedural restrictions in the Constitution. The cases are clear in this regard. The Legislature has complete power over its own procedure “unless there is some express provision of law or Constitution” to the contrary. Ex Parte McCarthy, 29 Cal. 395, 405 (1866); see Marine Forests Society v. California Coastal Com., 36 Cal.4th 1, 25 (2005). “The operative principle applicable here is that the Legislature cannot take action, whether by statute or MOU, that contravenes a constitutional provision.” Consulting Engineers and Land Surveyors of California, Inc. v. Professional Engineers in California Government, 42 Cal.4th 578, 588 (2007). The people may impose a limit on their own power, and may likewise limit the power of the Legislature. See Oakland Paving Co. v. Hilton, 69 Cal. 479, 489 (1866). Once limited, whether substantively or procedurally, the Legislature must obey those limits and it is up to the courts to enforce those limits.

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Article XIIIA, §3 is one such limit. It does not merely establish the legality of a tax once passed and sent to the Governor for signature. It imposes enforceable procedural limits on the Legislature’s power and describes the voting rights of members of the Legislature. By extension, those voting rights also belong to the California voters represented by individual lawmakers. Once a specific procedure is in place, it must be followed until changed. See County of Los Angeles v. State of California, 153 Cal. App 3d 568, 573 (1984). In the face of procedural limitations, “mandamus is available to compel the Legislature’s performance.” Mission Hosp. Regional Medical Center v. Shewry, 168 Cal.App.4th 460, 479 (2008); see In re Battelle, 207 Cal. 227, 255-257 (1929); California Radioactive Materials Management Forum v. Department of Health Services, 15 Cal.App.4th 841, 872 (1993). “While a court cannot direct how the Legislature exercises its discretion, it can require the Legislature to comply with all laws that govern it or the subject matter on which it is legislating.” Mission Hosp., 158 Cal. App. 4th at 479. These well-established principles are at issue in this case. Petitioners do not seek to have this or any Court tell the Legislature how to solve the state’s budget problems or what legislation to enact. Petitioners merely seek to enforce the Constitution’s mandated procedures for enacting

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increases to state taxes. In making this request, petitioners seek to protect their personal voting rights and the voting rights of their constituents. Nothing in Article III prevents the Court from hearing this case, and there are serious prudential concerns that support review at this stage. As noted in the petition, the enrolled bill doctrine may preclude review once legislative action is completed. See, e.g., Yolo County v. Colgan, 132 Cal. 265, 269 (1901); People v. Burt, 43 Cal. 560, 564 (1872); Sherman v. Story, 30 Cal. 253, 279 (1866).

While petitioners agree with respondents’

concession that the doctrine ought not to apply in this case, that concession does not and cannot bind this or any other court. While seeking to dismiss the concern about the enrolled bill doctrine, respondents show no concern about the limits on review under Article XIII, §32. Indeed, respondents seem to be relying on this feature of the Constitution in order to avoid timely judicial review. See Answer to Petition for Review (Answer) at 8 n.3. It is because the state is in such a dire fiscal situation that review cannot be delayed. In its Answer, Respondents assert that the violation of the two-thirds vote requirement of the Constitution is a routine and longstanding practice. See Answer at 2. If the Legislature continues to violate the constitutional rights of its members and the voters those members represent, the result could be catastrophic. The uncertain legal status of any

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tax increases and the potential for court-ordered refunds of unconstitutional collections of this scale would devastate the state. II RESPONDENTS’ ACTIONS VIOLATED PETITIONERS’ CONSTITUTIONALLY PROTECTED VOTING RIGHTS

When respondents dispensed with the constitutionally mandated two-thirds vote requirement for new taxes they did not merely take a step toward the enactment of unconstitutional legislation.

They deprived

petitioner legislators, and their constituents, of important voting rights. As noted in the Petition for Review, the courts have recognized that departures from procedure that nullify or dilute a vote violate federal constitutional rights.

See Coleman v. Miller, 307 U.S. 433, 441 (1939); Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 544 n.7 (1986); Skaggs v. Carle, 110 F.3d 831, 833 (D.C. Cir. 1997); Michel v. Anderson, 14 F.3d 623, 626 (D.C. Cir. 1994); Kennedy v. Sampson, 511 F.2d 430, 436 (D.C. Cir. 1974). Respondents, relying on Raines v. Byrd, 521 U.S. 811 (1997) -- a case about federal standing -- argue that the Supreme Court has rejected this constitutional claim.

Answer at 13-14.1

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Respondents’ claim that

Through the injudicious use of an ellipsis, respondents argue that petitioners find the unpublished Ninth Circuit decision in Amodei v. Nevada State Senate, 99 F. Appx. 90 (9th Cir. 2004), “persuasive.” The claim is 6

Raines involved “identical allegations” to those at issue is refuted by simply reviewing the case.

Raines involved a challenge to the

constitutionality of legislation. There was no allegation in the case that constitutionally mandated legislative procedures were violated. Instead, the claim was that the result of the legislative process was an unconstitutional law. Raines, 521 U.S. at 821. The Supreme Court did not reverse Coleman and hold that vote dilution was permitted by the Constitution. Instead, the Court ruled that the allegations in Raines did not make out a claim of vote dilution – the votes of the Senators and Representatives retained the same weight they always had. Id. at 824. Having failed in their argument that Raines overruled Coleman, respondents next argue that vote dilution claims are only protected by the federal constitution when the matter voted upon is one of federal concern. Answer at 11. Although it is an interesting coincidence that votes at issue in both Coleman and Bender had some relation to a federal concern, neither decision relied on that fact as the basis for the ruling. Respondents have cited no authority for their claim, and indeed, dilution and nullification of state votes on purely state issues is also protected by the federal constitution. See Roe v. State of Ala. By and Through Evans, 43 F.3d 574, 580 -581 (11th Cir. 1995).

(continued) nonsense. Petitioners clearly argued that Amodei is entitled to little, if any, weight and is not even citable in the federal courts. 7

III RESPONDENTS’ ACTION VIOLATES THE GUARANTEE CLAUSE Article IV, §4 of the United States Constitution guarantees citizens a “republican form of government.” Contrary to respondents’ claim, this encompasses more than a simplistic rejection of monarchy. See Answer at 15. Instead it also protects the right of citizens to form and structure their government as they see fit. See New York v. United States, 505 U.S. 144, 183 (1992); Kelley v. United States, 69 F.3d 1503, 1511 (10th Cir. 1995). This right is violated when government officials, as respondents did in this case, dispense with the governmental structure enacted by the people of the state. Here, respondents determined that it would be too inconvenient to follow the state constitutional requirement to gain a substantial consensus before imposing new tax burdens.

The requirements of the Constitution

may not be dispensed with in such a cavalier manner, however. When Californians adopted Proposition 13 they imposed a specific structure on their government. To reform the tax structure, Article XIIIA limited the rate and basis of property taxes. It further restricted the ability of government to override these reforms by requiring a substantial consensus before new taxes can be imposed. This governmental structure is protected by the Guarantee Clause.

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Respondents first assert that the Guarantee Clause in reality guarantees little if anything, and then argue that courts are without power to enforce the clause. For this latter argument, respondents rely on a case from 1911 holding that a corporation could not rely on the Guarantee Clause to challenge state voters’ decision to enact laws via initiative. In that case, the argument was not that the tax violated the governmental structure chosen by the people of Oregon. Instead, the argument was that the structure chosen was not sufficiently “republican in form.” Pacific States Telephone & Telegraph v. Oregon, 223 U.S. 118, 136 (1912). Faced with such a challenge, the Supreme Court ruled that Congress was the exclusive judge of whether a particular government structure is sufficiently “republican in form.” Id. at 151. In the nearly 100 years since Pacific Telephone was decided, the Court has recognized that there are other claims that might be made under the Guarantee Clause: More recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions. See Reynolds v. Sims, 377 U.S. 533, 582, 84 S.Ct. 1362, 1392, 12 L.Ed.2d 506 (1964) (“[S]ome questions

raised

under

the

Guarantee

Clause

are

nonjusticiable”). Contemporary commentators have likewise suggested that courts should address the merits of such claims, at least in some circumstances. See, e.g., L. Tribe, American Constitutional Law 398 (2d ed. 1988); J. Ely, Democracy and Distrust: A Theory of Judicial Review 118,

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and n., 122-123 (1980); W. Wiecek, The Guarantee Clause of the U.S. Constitution 287-289, 300 (1972); Merritt, 88 Colum.L.Rev., at 70-78; Bonfield, The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude, 46 Minn.L.Rev. 513, 560-565 (1962). New York v. U.S., 505 U.S. at 185. The claim made in this action is just such a claim that is suitable for judicial review. The court is not asked to usurp Congress’ judgment of what forms of government are “republican.”

Instead, petitioners seek

protection from those who would unilaterally change the structure of California government. Respondents simply fail to answer this claim.

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CONCLUSION This action raises critical questions of state and federal constitutional law. Review by this Court is required to settle these critical questions. The Court is not asked to order the Legislature to enact any particular law. Instead, petitioners seek only an order that respondents obey the Constitution, when they have already violated it once, with legislation deemed “passed” during the same budget crisis that continues to afflict the Legislature to this day.

DATED: February 18, 2009. Respectfully submitted, JOHN C. EASTMAN ANTHONY T. CASO, Of Counsel Center for Constitutional Jurisprudence JONATHON M. COUPAL TREVOR A. GRIMM TIMOTHY A. BITTLE Howard Jarvis Taxpayers Association

By _____________________________ ANTHONY T. CASO Attorneys for Petitioners

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CERTIFICATE OF COMPLIANCE Pursuant to California Rule of Court 8.204(c)(1), I hereby certify that the foregoing REPLY IN SUPPORT OF PETITION FOR REVIEW is proportionately spaced, has a typeface of 13 points or more, and contains 2,112 words. DATED: February 18, 2009.

_______________________________ ANTHONY T. CASO

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DECLARATION OF SERVICE I, Anthony T. Caso, declare as follows: I am a resident of the State of California. I am over the age of 18 years and am not a party to the above-entitled action. On February 18, 2009, true copies of REPLY IN SUPPORT OF PETITION FOR REVIEW were placed in envelopes addressed to: DIANE F. BOYER-VINE DANIEL A. WEITZMAN Office of Legislative Counsel State Capitol Building, Room 3021 Sacramento, CA 95814 Office of the Attorney General PO Box 944255 Sacramento, CA 94244 STEVEN L. MAYER Howard Rice Nemerovski Canady Falk & Rabkin Three Embarcadero Center, 7th Floor San Francisco, CA 94111 OFFICE OF THE CLERK CALIFORNIA COURT OF APPEAL 621 Capitol Mall, 10th Floor Sacramento, CA 95814 which envelopes, with postage thereon fully prepaid, were then sealed and deposited in a mailbox regularly maintained by the United States Postal Service in Sacramento, California.

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I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed this 18th day of February, 2009, at Sacramento, California.

_______________________________ Anthony T. Caso

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