Tag Archives: judicial review

A Lawsuit Challenges The Two-Thirds Rule

It seems thirty years or so too late, but a former UCLA chancellor and director of the MOCA in Los Angeles named Charles Young filed suit against the provision in Proposition 13, passed in 1978, that requires a two-thirds vote in the Legislature to raise taxes.  The legal theory behind the case mirrors the theory behind the attempted repeal of Prop. 8 this year, which was ultimately unsuccessful.

The legal theory of the suit, which names the Legislature’s chief clerks as the technical defendants, is that when voters passed Proposition 13 in 1978, cutting property taxes and requiring a two-thirds vote for tax increases, it was a “revision” of the state constitution rather than an “amendment.”

The constitution allows amendments to be made by initiative petition but allows revisions – generally a more fundamental change – to be made only through a constitutional revision commission or a constitutional convention.

It’s essentially the same argument that opponents of Proposition 8, the 2008 measure that outlawed same-sex marriages, made in attempting to persuade the state Supreme Court to void that measure. But the court, which had earlier sanctioned same-sex marriages, ruled that Proposition 8 was valid.

I’m a bit surprised that Young didn’t include the single-subject rule in his charges, as the property tax rules and the two-thirds requirement for taxes don’t seem to bear much relationship to one another.  Of course, that has already been argued before the state Supreme Court, along with the revision argument, equal protection concerns and about a half-dozen other charges, four months after passage, in Amador Valley, and the Supreme Court upheld the initiative.  Here’s the way the revision argument played out back then.

The California Supreme Court held that although Proposition 13 would result in various substantial changes to the constitution, it was only an amendment because the changes were narrowly tailored to the objective of changing the taxation system. Id. at 228.  According to the Court, a change in the voting requirement did not amount to a revision of the constitution.  The Court further stated it was not uncommon to have similar voting requirements for financial matters, and that the Proposition would not effect home rule.  Id.  The Court cited Article XIII, Section 20 of the State Constitution that authorizes the legislature to set maximum property tax rates. Id. at 228.   The Court concluded this new article, implemented by Proposition 13, would be no more threatening to home rule than Article XIII, § 20. Id.  The Court, while not endorsing the Proposition, did state the initiative process was a direct form of government from the people. Id.  Finally, the court held that it would not limit the ability of people, through the initiative process, to achieve such a limited purpose of a new system of taxation. Id.

The Court upheld every aspect of Prop. 13 at that time, and the law has withstood multiple legal challenges over the years.  Like with Proposition 8, the Court seems loath to overturn a vote of the people, and now we’re 31 years down the road.  Of course, this forms the core of Charles Young’s argument, that the effects of Prop. 13 are powerful evidence that it is not merely an amendment, but a major revision affecting the lives of all California’s citizens.

I’m skeptical that this can get off the ground, but I see little harm in it.  And maybe putting Prop. 13 on trial, and laying out the effects in sharp detail, could lead to closing the loophole and building a sustainable revenue base.

Pushback: SEIU Potential Walk-Out, Corporate Tax Cut Repeal, Court Overturns Medi-Cal Cuts

Rumors ran rampant yesterday that state employees, pushed too far by yet another salary cut (totaling 20% over the course of the year), would potentially strike.

Doug Crooks, Director of Communications with the Service Employees International Union’s local 1000, which represents more than 95,000 state employees, declined to confirm the rumor but said any decision would be made by the employees through an authorization vote.

“In the first place, that decision hasn’t been made yet,” said Crooks about the plan to strike. “That decision hasn’t been made yet. We are definitely going to strongly oppose and do everything we can to prevent the governor from imposing a fourth furlough day. But check back with me Monday.”

“The bottom line is we negotiated with this governor in good faith and we agreed on a contract that would save $340 million dollars immediately, and if applied to all state employees it would save the state a billion dollars. That’s billion with a ‘B.’ And for the governor to undermine that contract now is beyond irresponsible. He’s made the state employee a pawn” in the state budget negotiations.

“Well actually, it’s a five percent cut on top of those three furlough days,” explained Alicia Trost, a spokesperson for Senate leader Darrell Steinberg. “It’s simply a scare tactic by the governor, yet another, and we feel the state workforce has already paid their fair share. What’s worse is that it would have a horrible effect on the economy if state workers were to lose up to 20 percent of their buying power.”

By the way, Mr. Stogie just lost a furlough case, with a judge tentatively ruling that he cannot furlough  the legal staff of the State Compensation Insurance Fund, which has emboldened the larger pool of workers in SEIU.  But more to the point, in the world of Arnold Antionette and the Yacht Party, workers making a median income getting 20% salary cuts while the largest corporations doing business in the state get a massive corporate tax break is considered “everyone paying their fair share.”

Speaking of which, Lenny Goldberg offers the text of an initiative to repeal the negotiated-in-secret corporate tax cuts and save the state $2.5 billion dollars a year.  Opponents typically respond with race-to-the-bottom rhetoric about businesses leaving the state, which isn’t true, by the way.

UPDATE: Here’s a study out TODAY from the PPIC confirming that the whole “the rich are leaving California” line is a flat-out lie.

Finally, a federal appeals court ruled that California cannot cut Medi-Cal reimbursements, in an opinion written by a George W. Bush appointee.  The familiar pattern of breaking the law to cut the budget often runs up against judicial review, and so the criminals in Sacramento – considering what they’re attempting, I don’t consider that hyperbole – will have to try something else to achieve their long-sought destruction of the social safety net.  

Dems Poised To Sell Out 4th Amendment Again

The handshakes have been made, the contribution checks have been written, and the telecom industry and corporate shill Democrats have joined forces to immunize lawbreaking and undermine the rule of law.  This time, for real.

A final deal has been reached on a rewrite of electronic surveillance rules and will be announced Thursday, two congressional aides said.

The aides said the House is likely to take up the legislation Friday….

As of Wednesday, sources said the new bill would allow a federal district court to decide whether to provide retroactive legal immunity to telecommunications companies being sued for their role in the Bush administration’s warrantless surveillance program….One source said the federal district court deciding on retroactive immunity would review whether there was “substantial evidence” the companies had received assurances from the government that the administration’s program was legal.

Absolutely absurd.  Not only does this bill still allow for mass surveillance on American citizens, but according to its provisions, if the Attorney General wrote a “get out of the Constitution free” note to its telecom partners, which we alrady know they did, then they are allowed to violate federal statutes.  The telecoms don’t have any lawyers who can provide their own analysis, apparently.  I guess all the money goes into lobbying.  This is total amnesty without any way of discovering who broke the law and when.  The entire point of telecom immunity was to shut down any investigations into spying on Americans.  Democrats are cupable for having not spoken up to stop this when they had the chance and the Hoyer-Rockefeller axis wants to just bury the bodies.

This will come up for a vote as soon as TOMORROW in the House, despite being just released today.  Your representative needs a call.  Joe Baca is a Blue Dog who supported the good FISA bill, the one without amnesty.  He in particular needs some attention.

Rep. Joe Baca, D-Calif. — Phone: (202) 225-6161, Fax: (202) 225-8671

When this reaches the Senate, it will be another accountability moment for Dianne Feinstein.  She has tried to duck this debate repeatedly, but she can tell us by her vote where she stands – with corporate execs and lobbyists, or with the rule of law and the right to privacy.

Untangling DiFi on FISA

(bumped – promoted by Brian Leubitz)

Marcy Wheeler has two excellent stories up today at her new home which I highly recommend to you if you want to understand Dianne Feinstein’s evolving position on FISA and retroactive immunity for the telecoms.  We know that, several weeks ago, Feinstein was wholly in support of immunity, having happily voted for it in the Intelligence Committee.  During yesterday’s floor debate, she offered a couple amendments, both with the goal of putting the warrantless wiretapping program and all questions about it, now and forever, under the authority of the FISA court.  In Marcy’s first piece, she notes the conservative reaction to Feinstein’s amendment asking that the question of immunity be decided by the FISA court instead of the Congress.


Now, before Orrin Hatch started accusing “partisan blogs” of fear-mongering on this debate, he had an apoplectic fit about DiFi’s amendment, lumping it in with more generalized DFH opposition to immunity. He strongly suggested DiFi’s amendment would be a poison pill for him–and presumably the other Republicans following Dick Cheney’s orders dutifully.

And there’s a reason for that. When the SSCI passed their immunity bill, they did so only by inventing the fiction that it was legal for telecoms to wiretap at the behest of the government if they had the authorization of the Attorney General or “certain other officers.” They did so because they know–having read the authorization letters–that one of the letters (presumably the one for March 11, 2004), was signed by White House Counsel Alberto Gonzales.

This is important because the FISA court, being authorized to view classified information, would be able to view all the relevant documents, and may make the ruling that people not authorized to sign off on the wiretapping program did so, which would make the telecoms liable for continuing the wiretapping program beyond March 10, 2004, at a point when the AG and the Acting AG determined it to be unlawful.

In other words, DiFi’s amendment threatens to scuttle the real intent of the immunity provision, protecting Bush from any legal consequences for wiretapping illegally.

We all know how sloppy and reliant on extreme theories of unchecked executive power the Bush Administration is.  This would put them in a tremendous bind.  And Feinstein’s signal that she would “have a very tough time” voting for the full bill without this compromise, which is co-sponsored by Bill Nelson, means that the more moderate faction of the Democratic caucus is not interested in handing over blanket immunity (I reserve the right to be disappointed in DiFi if and when she turns her back on this).

In a later post, Wheeler takes a closer look at the DiFi amendment and her floor statement.  As I noted, Feinstein was initially making all kinds of excuses that the amnesty she voted for in the committee wasn’t really amnesty, that the poor telecom companies can’t defend themselves because Bush is handcuffing them by invoking state secrets, that they acted after 9/11 to help protect the nation (even though the government was asking for telecom help before 9/11), that “These companies have no financial motives in providing assistance to the Government.”  That’s why it was such a surprising outcome to have her next introduce this amendment.  But she goes on to imply that the Bush Administration was relying on inherent authority under Article II to make legal their wiretapping program, and that it’s high time we got some judicial review over that from a court able to hear secret testimony (so the government can’t hide behind the state secrets privilege).  Here’s the relevant part of DiFi’s statement:

The amendment I am going to submit would put before the FISA Court the question of whether the telecommunications companies should, in fact, receive immunity based on the law.

The FISA Court would be required to act, en banc, and how this is, is 15 judges, Federal judges, appointed by the Chief Justice, they sit 24/7, and this is all they do, they would act en banc. They would look at the following: Did the letters sent to the carriers which were repeated virtually every 35 to 45 days over the last 4 to 5 years, did the letters sent to the carriers meet the conditions of law.

Section 2511 of title 18 clearly states that a certification from the Government is required in cases where there is no court order. That is the only two ways that FISA allows this to proceed, by written certification or by court order.

The Government has to certify in writing that all statutory requirements for the company’s assistance have been met. So the FISA Court would first look at whether the letter sent to the companies met the terms of this law. The court would then look at, if the companies provided assistance, was it done in good faith and pursuant to a belief that the compliance was legal.

Finally, the FISA Court would ask: Did the defendants actually provide assistance? If the FISA Court finds that defendant did not provide any assistance to the Government or that the assistance either met the legal requirements of the law or was reasonably and in good faith, the immunity provision would apply.

If the FISA Court finds that none of these requirements were met, immunity would not apply to the defendant companies. I think the merit of this approach is it preserves judicial review, the method we look at in order to decide questions of legality.

Now, the bulk of the Members of this body, probably 90 percent of them, have not been able to see the written certification, so you do not know what was there. What we ask in this amendment is: FISA Court, you take a look at these letters, and you make a ruling as to whether they essentially meet the certification requirements of the FISA law.

Therefore, there is judicial review to determine whether, under existing law, this immunity should be forthcoming. It is a narrowing of the immunity provisions of the Intelligence bill. I think it makes sense. I read the letters. I am a layperson, I am not a lawyer. I cannot say whether they met the immunity provisions. Others can say that.

But it should be up to a court to make that decision. It seems to me that if the FISA Court finds that none of these requirements were met, immunity would not apply to the defendant companies.

The key point to make here is that Feinstein HAS seen these letters.  She knows what they say and who authorized them.  She’s claiming that she doesn’t know whether or not the telecoms are eligible for immunity (then why did she vote for it?), but clearly she has a little more knowledge than the average citizen or even the average Senator.  And this gets to the heart of all of the crazy unitary executive theories that the Administration has been making from practically the moment they got into office.

So, there has obviously been a subtle but important shift in Feinstein’s thinking.  And without the concerted effort of the progressive grassroots in California, I think it’s fair to say that wouldn’t have happened.  The Feinstein bloc is now another hurdle for those who want to immunize phone companies for lawbreaking, maybe one that’s insurmountable and can derail the whole bill.  It’s up to the grassroots to hold Feinstein to her word.  Her amendment deserves a full and honest hearing.  If it passes, we can trust the judicial review process to go forward.  But if it fails, the real question is whether Feinstein will be as good as her word, and block the bill for failing to have proper oversight.  This is why we must continue the pressure over the holidays and let her know that we’re still watching.