090120 petition for review final
TRANSCRIPT
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CASE NO. ___________
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.
PETITION FOR REVIEW
After Denial of Petition for Writ of Mandate by theCourt of Appeal, Third Appellate District
No. C060795
JOHN C. EASTMAN, No. 193726 JONATHON COUPAL, No. 107815ANTHONY T. CASO, No. 88561 TREVOR A. GRIMM, No. 34258Of Counsel TIMOTHY A. BITTLE, No. 112300Ctr. for Const. Jurisprudence Howard Jarvis Taxpayers Assn.c/o Chapman Univ. Sch. of Law 921 Eleventh StreetOne University Drive Suite 1201Orange, California 92866 Sacramento, California 95814Telephone: (714) 628-2500 Telephone: (916) 444-9950
Attorneys for Petitioners
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CERTIFICATE OF INTERESTEDENTITIES OR PERSONS
California Rules of Court 8.208, 8.490(i), 8.494(c), or 8.498(d)
Court of Appeal Case Caption:
Howard Jarvis Taxpayers Association, et al. v. Legislature of the State of California, et al.
Court of Appeal Case Number: C060795
Please check here if applicable:
There are no interested entities or persons to list in thisCertificate as defined in the California Rules of Court.Name of Interested Entity or Person(Alphabetical order, please.)
Nature of Interest
1.
2.
3.
Please attach additional sheets with Entity or Person Information,if necessary.
_____________________________________ January 20, 2009.ANTHONY T. CASO
Printed Name: Anthony T. CasoState Bar No: 88561Firm Name & Address: Center for Constitutional Jurisprudence
c/o Chapman University School of LawOne University DriveOrange, CA 92866
Party Represented: Petitioners
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TABLES OF CONTENTS
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS ................... i
TABLE OF AUTHORITIES ........................................................................ iv
PETITION FOR REVIEW ............................................................................ 1
ISSUES PRESENTED FOR REVIEW ......................................................... 1
SUMMARY OF BASIS FOR REVIEW ....................................................... 2
STATEMENT OF THE CASE ..................................................................... 5
ARGUMENTS IN SUPPORT OF REVIEW ................................................ 7
I. THE SEPARATION OF POWERS DOCTRINE REQUIRES,RATHER THAN FORBIDS, JUDICIAL ENFORCEMENT OFCONSTITUTIONAL LIMITS ON LEGISLATIVE POWER ..................... 7
II. THE COURT OF APPEALS HOLDING THATPETITIONERS DID NOT HAVE A COGNIZABLE INJURYFROM VOTE DILUTION IS INCONSISTENT WITHPRECEDENT OF THE UNITED STATES SUPREME COURTAND IN DIRECT CONFLICT WITH DECISIONS OF SEVERALFEDERAL CIRCUIT COURTS ................................................................. 11
A. THE FACT THAT AN UNLAWFULLY PASSED BILLDOES NOT ULTIMATELY TAKE EFFECT DOES NOTNEGATE VOTE DILUTION INJURY ................................................ 11
B. THE HOLDING BY THE COURT OF APPEAL HAS FAR-
REACHING CONSEQUENCES .......................................................... 17
C. THE COURT OF APPEALS HOLDING ALSO FAILED TORECOGNIZE COGNIZABLE INJURIES OF THE NON-LEGISLATOR PETITIONERS THAT HAVE BEENRECOGNIZED BY THE SUPREME COURT OF THE
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UNITED STATES AND BY SEVERAL FEDERAL CIRCUITCOURTS ................................................................................................ 18
D. THE COURT OF APPEALS DECISION NOT TOCONSIDER THE ILLEGALITY OF THE LEGISLATURESACTION ALSO LEAVES UNADDRESSED PETITIONERSCLAIMS YHAT, BY ALTERING THE STRUCTURE OF THESTATE CONSTITUTION, PETITIONERS FEDERALCONSTITUTIONAL RIGHT TO A REPUBLICAN FORM OFGOVERNMENT HAS BEEN VIOLATED .......................................... 21
CONCLUSION ........................................................................................... 23
APPENDIX ................................................................................................. 25
CERTIFICATE OF COMPLIANCE .......................................................... 26
DECLARATION OF SERVICE ................................................................. 27
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TABLE OF AUTHORITIES
CASES
Adams v. Clinton , 90 F. Supp. 2d 35 (D.D.C. 2000) ................................... 22 Amodei v. Nevada State Senate , 99 Fed.Appx. 90 (2004) .......................... 12
Atkins v. Parker ,
472 U.S. 115 (1985) ................................................................................. 14
AVX Corp. v. United States ,
962 F.2d 108 (1st Cir. 1992) .................................................................... 18
Bender v. Williamsport Area Sch. Dist. ,
475 U.S. 534 (1986) ........................................................................... 14, 15
Board of Ed. of City School Dist. of City of New York v. City of New York ,
41 N.Y.2d 535, 362 N.E.2d 948 (1977)..................................................... 8
Brzonkala v. Virginia Polytechnic Inst. & State Univ. , 169 F.3d 820 (4th
Cir. 1999), affd sub nom. United States v. Morrison , 529 U.S. 598
(2000) ....................................................................................................... 23
California Radioactive Materials Management Forum v. Department of
Health Services , 15 Cal.App.4th 841, 872 (1993) ..................................... 9
Christoffel v. United States ,
338 U.S. 84 (1949) ................................................................................... 14
City of Hawthorne ex rel. Wohlner v. H & C Disposal Co. , 109 Cal.App.4th
1668, 1678, fn. 5 (2003) .......................................................................... 13
City of New York v. United States , 179 F.3d 29 (2nd Cir. 1999) ................ 22
Coalition for Sensible and Humane Solutions v. Wamser ,
771 F.2d 395 (8th Cir. 1985) ................................................................... 18
Coleman v. Miller ,
307 U.S. 433 (1939) .......................................................................... passim
Common Cause v. Board of Supervisors , 49 Cal.3d 432, 445 (1989) .......... 7
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Conway v. Searles ,
954 F. Supp. 756 (D. Vt. 1997) ............................................................... 14
Creel v. Freeman ,
531 F.2d 286 (5th Cir. 1976) ................................................................... 18 Daughtrey v. Carter ,
584 F.2d 1050 (D.C. Cir. 1978) ............................................................... 18
De Asis v. Department of Motor Vehicles , 112 Cal. App. 4th 593, 596 n.1
(2003) ....................................................................................................... 10
Deer Park Ind. Sch. Dist. v. Harris County Appraisal Dist. , 132 F.3d 1095
(5th Cir. 1998).......................................................................................... 22
Franklin v. Massachusetts ,505 U.S. 788 (1992) ................................................................................. 18
Gray v. Sanders ,
372 U.S. 368 (1963) ................................................................................. 20
Gutierrez v. Pangelinan ,
276 F.3d 539 (9th Cir. 2002) ................................................................... 12
Harper v. Virginia Bd. Of Elections ,
383 U.S. 663 (1966) ................................................................................. 20
In re Battelle , 207 Cal. 227, 255-257 (1929) ................................................ 9
In re Marriage Cases , 43 Cal.4th 757, 849 (2008) ....................................... 9
Kelley v. United States , 69 F.3d 1503 (10th Cir. 1995) .............................. 22
Kennedy v. Sampson , 511 F.2d 430, 436 (D.C. Cir. 1974) ......................... 12
Locklear v. North Carolina State Board of Elections ,
514 F.2d 1152 (4th Cir. 1975) ................................................................. 18
Luther v. Borden , 48 U.S. (7 How.) 1 (1849).............................................. 21
Michel v. Anderson ,
14 F.3d 623 (D.C. Cir. 1994) ................................................................... 19
Miller v. Johnson
515 U.S. 900 (1995) ................................................................................. 17
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Myers v. English , 9 Cal. 341, 349 (1858) ...................................................... 8
New Jersey v. United States , 91 F.3d 463 (3rd Cir. 1996) .................... 22, 23
New York v. United States , 505 U.S. 144 (1992) .................................. 21, 22
Padavan v. United States , 82 F.3d 23 (2nd Cir. 1996) ............................... 22People v. Burton , 48 Cal.3d 843, 854, 258 (1989) ...................................... 12
People v. Crittenden , 9 Cal.4th 83, 120, fn. 3 (1994) ................................. 12
Rea v. Matteucci ,
121 F.3d 483 (9th Cir. 1997) ................................................................... 14
Reynolds v. Sims ,
377 U.S. 533 (1964) ................................................................................. 18
Richardson v. Town of Eastover ,922 F.2d 1152 (4th Cir. 1991) ................................................................. 14
Roe v. State of Ala. By and Through Evans ,
43 F.3d 574 (11th Cir. 1995) ................................................................... 18
Serrano v. Priest , 18 Cal.3d 728 (1976), ....................................................... 7
Silver v. Pataki ,
755 N.E.2d 842 (N.Y. 2001) .............................................................. 12, 16
Skaggs v. Carle ,
110 F.3d 831 (D.C. Cir. 1997) ............................................... 12, 17, 18, 19
Sklar v. Franchise Tax Board , 185 Cal.App.3d 616, 624 (1986) ................. 8
State ex. rel. Huddleston v. Sawyer , 932 P.2d 1145 (Or. 1997) .................. 22
Texas v. United States , 106 F.3d 661 (5th Cir. 1997) ........................... 22, 23
United States v. Mosley ,
238 U.S. 383 (1915). ................................................................................ 20
Vote Choice, Inc. v. DiStefano ,
4 F.3d 26 (1st Cir. 1993) .......................................................................... 18
Westberry v. Sanders ,
376 U.S. 1 (1964) ..................................................................................... 18
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Yellin v. United States ,
374 U.S. 109 (1963) ................................................................................. 14
Yolo County v. Colgan , 132 Cal. 265 (1901) .......................................... 9, 10
CONSTITUTIONAL PROVISIONS
U.S. Const. art. IV, 4 ................................................................................ 21
Cal. Const., Art. XIIIA, 3 ....................................................................... 3, 8
Cal. Const., Art XIII, 32...10
OTHER AUTHORITIES
Bonfield, Arthur E., The Guarantee Clause of Article IV, Section 4: A
Study in Constitutional Desuetude , 46 Minn. L. Rev. 513, 560-65
(1962) ....................................................................................................... 22
Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review
(1980) ....................................................................................................... 21
Merritt, Deborah Jones, The Guarantee Clause and State Autonomy:
Federalism for a Third Century , 88 Colum. L. Rev. 1, 70-78 (1988) ..... 21
Tribe, Lawrence H., American Constitutional Law 398 (2d ed. 1988) ....... 21
Wiecek, William M., The Guarantee Clause of the U.S. Constitution
(1972) ....................................................................................................... 21
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PETITION FOR REVIEW
TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES
OF THE CALIFORNIA SUPREME COURT:
The Howard Jarvis Taxpayers Association, et al ., petitioners below,
respectfully petition for review following the decision of the Court of
Appeal, Third Appellate District, Justice Scotland, P.J., filed on January 7,
2009, denying Petitioners Petition for an Original Writ of Mandate. (A
copy of the order denying the Petition is attached hereto as Appendix A
(Order).)
ISSUES PRESENTED FOR REVIEW
This case presents the following issues for review:
1. Whether the judicial power in this state includes the power to rule on
cases challenging the failure of the Legislature to abide by constitutionally
mandated procedural limits on its power, including the two-thirds vote
requirement for tax increases contained in Article XIIIA of the California
Constitution?
2. Whether the Court of Appeal erred in holding that Petitioners
federal vote dilution claim was not ripe at the time the illegal vote dilution
occurred but would only become ripe if the illegally-approved bill was
signed into law by the Governor?
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SUMMARY OF BASIS FOR REVIEW
Article XIIIA, Section 3 of the California Constitution requires a
two-thirds vote of both houses of the Legislature to approve any changes
in state taxes enacted for the purpose of increasing revenues. That
provision requires that a supermajority consensus be achieved in order for
the Legislature to adopt bills creating new or increased taxes, and thereby
affords to individual legislators and the taxpayers they represent a greater
weight to their vote than exists under a simple majority rule, significantly
altering the legislative dynamic in the process.
On December 18, 2008, both houses of the Legislature deemed
passed by simple majority vote and forwarded to the Governor two bills,
Assemble Bill 2, First Extraordinary Session (AB 2) and Senate Bill 11,
First Extraordinary Session (SB 11), which together significantly increased
taxes in California. By deeming AB 2 and SB 11 passed without the
requisite two-thirds vote, the Legislature clearly diluted the
constitutionally-mandated weight of the vote of the Legislator petitioners
(and derivatively of their taxpaying constituents) and altered the legislative
dynamic in such a way that the Legislator petitioners have largely been
excluded from budget negotiations. Those harms, which violate not only
the California Constitution but rights guaranteed by the Fourteenth
Amendment of the United States Constitution as well, were fully
cognizable at the moment the bills were illegally deemed passed. The
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fact that an additional harm collection of the illegal taxesdid not also
materialize with respect to these particular bills does not eliminate the
constitutional harm already committed.
Serrano v. Priest and the separation of powers doctrine relied upon
by the Court of Appeal below do not impose a jurisdictional barrier to
judicial consideration of the violations of constitutional rights at issue here.
The Petition for Writ of Mandate did not seek to have the Court order the
Legislature to adopt any particular bill, the request at issue and properly
rejected in Serrano . Rather, the Petition sought only to compel compliance
with the constitutional mandate that bills increasing taxes require a two-
thirds vote. That is the kind of request that not only has been heard
repeatedly by the courts of this state, but may well be one of the most
important of the functions assigned by the Constitution to the judiciary.
Neither is the Court of Appeals concern about ripeness ground for
holding that it was without jurisdiction to consider Petitioners claims. For
the reasons noted above, the violation of the constitutionally-protected
legislative voting rights alleged by Petitioners was fully ripe at the time the
illegal vote was taken and the bills deemed passed. The precedent set by
that illegal action of the Legislature continues to alter the legislative
dynamic even now, and will continue to do so unless and until the judiciary
decides whether the Legislatures scheme can be reconciled with Article
XIIIA, Section 3 of the California Constitution.
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Even if various prudential doctrines might allow for the Courts to
defer consideration of Petitioners serious constitutional claims until after
an illegal tax is not only voted upon by the Legislature but signed by the
Governor, transmitted to the Secretary of State, and collected by the various
agencies of state government, the consequences of such a deferral in the
midst of the dire financial circumstances currently facing the State could be
devastating. Once a tax is implemented, legal challenges to it are only
permitted after the tax is paid and a request for refund is made and denied.
If, as appears likely, massive tax increases adopted without the
constitutionally-required two-thirds vote are then ultimately held to be
unconstitutional after several years of administrative and litigation process,
the size of the refund due would be of historic proportion, and would
undoubtedly bring the State of California to the brink of bankruptcy if not
beyond. Prudence therefore dictates that the legality of the novel legislative
scheme at issue here be resolved now.
Finally, one additional legal issue strongly counsels in favor of
judicial intervention now, rather than after any illegal tax increase is on the
books and being collected. The enrolled bill doctrine suggests that the
Courts may well be barred even from considering the process by which a
piece of legislation was enacted, once it had been placed in the statute
books by the Secretary of State.
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For all of these reasons, the Court of Appeal must be directed to
consider the Petition on its merits.
STATEMENT OF THE CASE
The State of California is in a financial crisis. Although revenues
over the past five years have increased at rates significantly higher than
both population and inflation, spending over that same period has increased
almost twice as fast, creating a perennial gap in the states budget that has
never been closed. Now, in the midst of the worst recession since the great
depression, the size of the budget shortfall is larger than it has ever been.
While a two-thirds consensus vote requirement requires compromise
by all parties, that goal has proven elusive. Instead, believing that it can
increases revenues without the two-thirds vote required by the Constitution,
a majority in the Legislature seems bent on imposing a multi-billion dollar
tax increase to close the budget gap, at least on paper. 1 Because there does
not exist a two-thirds consensus in the Legislature at this moment in favor
of a tax increase, legislative leaders developed a scheme to skirt the two-
thirds vote requirement by reclassifying billions of dollars of existing taxes
as fees, then raising those fees, as well as the states sales tax and
income tax, by billions of dollars more. This scheme, contained in two
pieces of related legislation, AB 2 and SB 11, was then deemed passed
1 A tax increase in the middle of a recession may well result in lowerrevenues to the state, as the increased taxes drive business from the stateand otherwise burden economic activity.
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by the Legislature on December 18, 2008, despite having garnered less than
the two-thirds vote required by the California Constitution.
Petitioners here, legislators from each house sufficient in number to
have defeated the tax increase, together with individual taxpayers, taxpayer
and business organizations, filed a petition for writ of mandate in the Court
of Appeal for the Third District on Tuesday, January 6, 2009, seeking to
block the Legislature and other state officials from giving effect to the tax
increase bills that the Legislature illegally deemed as passed.
Later that same day, in direct response to the lawsuit, legislative
leaders forwarded the illegally passed tax increase bills to the Governor for
consideration. Although the Governor vetoed the bills that very evening,
he explicitly did so because the bills did not contain an economic stimulus
package he wanted, not because the bills had failed to garner the
constitutionally-mandated two-thirds vote.
The following day, the Court of Appeal dismissed the Petition,
holding in its brief, one-page order that the relief requested would violate
the separation of powers doctrine enunciated in Article III, Section 3 of the
California Constitution and that the claims were not ripe absent the
Governors signing of the proposed legislation. The Legislature,
emboldened by the dismissal, continues to toy with schemes to raise
billions of dollars in new tax revenue without the two-thirds vote required
by the state Constitution.
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This Petition for Review does not ask the courts to enter this
political fray or to direct the Legislature to resolve the states budget
problems in any particular manner. Instead, it seeks only judicial
enforcement of the constitutionally mandated procedures for legislative
action to increase taxes. More specifically, this petition seeks a narrow
order directing the Court of Appeal to consider the merits of petitioners
significant constitutional claims. The petition is timely filed pursuant to
Rule 8.500 of the California Rules of Court.
ARGUMENTS IN SUPPORT OF REVIEW
ITHE SEPARATION OF POWERS DOCTRINE REQUIRES,
RATHER THAN FORBIDS, JUDICIAL ENFORCEMENT OFCONSTITUTIONAL LIMITS ON LEGISLATIVE POWER
The Court of Appeal relied upon Serrano v. Priest , 18 Cal.3d 728
(1976), for the proposition, rooted in the separation of powers doctrine,
that the courts may not order the Legislature or its members to enact or not
to enact, or the Governor to sign or not to sign, specific legislation . . . .
But as this Court has frequently noted, the separation of powers doctrine
prohibits the Court from interfering with the discretionary powers of the
other branches, not from addressing the constitutionality of the actions of
the other branches. Common Cause v. Board of Supervisors , 49 Cal.3d
432, 445 (1989) (it is well settled that although a court may issue a writ of
mandate requiring legislative or executive action to conform to the law, it
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may not substitute its discretion for that of legislative or executive bodies in
matters committed to the discretion of those branches). Although
[m]andamus will not lie to compel a legislative body to perform legislative
acts in a particular manner , Sklar v. Franchise Tax Board , 185
Cal.App.3d 616, 624 (1986) (emphasis added), [i]t is within the legitimate
power of the judiciary, to declare the action of the Legislature
unconstitutional, where that action exceeds the limits of the supreme law,
id . at 625 (quoting Myers v. English , 9 Cal. 341, 349 (1858)) (emphasis in
original).
This common-sense distinction exists in other states as well. See,
e.g., Board of Ed. of City School Dist. of City of New York v. City of New
York , 41 N.Y.2d 535, 362 N.E.2d 948 (1977) (While in general the courts
will not interfere with the internal procedural aspects of the legislative
process, judicial review may be undertaken to determine whether the
Legislature has complied with constitutional prescriptions as to legislative
procedures).
Petitioners did not ask the Court of Appeal for an order directing the
legislature to adopt any specific legislation or to resolve the current budget
deficit in any particular way. Rather, they sought an order preventing the
legislature from acting in violation of the two-thirds vote provision of
Article XIIIA, Section 3. Not only are the courts authorized to consider
such a petition, they are obliged to do so. See In re Marriage Cases , 43
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Cal.4th 757, 849 (2008) (A court has an obligation to enforce the
limitations that the California Constitution imposes upon legislative
measures). California courts have acted to enforce the procedural
limitations on legislative action. 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). The
Court of Appeals mistaken interpretation of Serrano to the contrary needs
to be reversed, and this case remanded for consideration of Petitioners
claims on their merits.
Further, prudential concerns weigh in favor of review at this time.
As noted below, the federal constitutional injury is complete and further
action of the Legislature or Governor will not aid the Court in the
resolution of that issue. There is some concern, however, that the issues
may escape review or be seriously complicated if the Court delays
review. An argument could be raised that the enrolled bill rule precludes
judicial review of the procedure employed by the Legislature to enact
legislation. In Yolo County v. Colgan , 132 Cal. 265 (1901), this Court
affirmed a denial of a writ of mandate, which had challenged the validity of
a statute that had been duly certified, approved, enrolled, and deposited in
the office of the secretary of state, on the ground that the journal of the
Senate indicated that it had received only twenty votes in the Senate when
twenty-one votes were required for passage. Id . at 267. The Court held
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that the enrolled act, once duly signed, approved, and filed with the
secretary of state, is conclusive evidence that the bill did receive the
requisite number of votes, at least when there is some dispute about
whether the information recorded in the legislative journal was correct. Id .
at 269; See De Asis v. Department of Motor Vehicles , 112 Cal. App. 4th
593, 596 n.1 (2003). While Petitioners would argue strongly that the
enrolled bill doctrine should not apply to the circumstances presented
herethere is no factual dispute over whether AB 2 and SB 11 received a
two-thirds vote, for example, only a legal dispute about whether those bills
could be passed by a simple majority votea holding to the contrary would
prevent the courts of this state from ever considering the constitutionality of
a tax increase adopted by simple majority vote rather than the two-thirds
vote mandated by Article XIIIA of the California Constitution. A mainstay
of Proposition 13, one of the landmark constitutional amendments ever
adopted by the People of this State, would therefore be rendered a dead
letter.
There is also concern about whether taxpayers could bring a facial
challenge to an unconstitutional tax. Cal. Const., art XIII, 32. If
taxpayers are forced to pay the tax and then file for individual refunds,
however, the delay in obtaining a ruling on the legality of these revenue
enhancement schemes could be devastating for the states ability to plan
its finances.
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II
THE COURT OF APPEALS HOLDING THAT PETITIONERS DIDNOT HAVE A COGNIZABLE INJURY FROM VOTE DILUTION IS
INCONSISTENT WITH PRECEDENT OF THE UNITED STATESSUPREME COURT AND IN DIRECT CONFLICT WITH
DECISIONS OF SEVERAL FEDERAL CIRCUIT COURTS
The Court of Appeal also held that Petitioners claims, including
their federal vote dilution claims, were not ripe. The entirety of the
Appellate Courts ripeness holding is as follows: Absent the Legislature's
passage and the Governor's signing of such legislation, adjudications of its
constitutionality and the other matters raised by the petition are not yet ripe
for judicial review. The Court of Appeals did not cite any authority for
that holding, nor are we aware of any California holding that the judiciary
has no power to enforce constitutionally mandate procedures for legislative
action in the absence of a gubernatorial signature. There are, however,
several cases from the federal Circuit Courts of Appeals that do reach the
issue, with conflicting results. It is therefore important for this Court to
resolve the question of ripeness and then, if it agrees with Petitioners
contention that the vote dilution claims were ripe, direct the Court of
Appeal to consider the claims on their merits.
A. The Fact that an Unlawfully Passed Bill Does NotUltimately Take Effect Does Not Negate Vote Dilution Injury
The issue raised by the Court of Appeals decision with respect to
the ripeness of Petitioners claims is whether an individual legislator whose
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vote has been unlawfully diluted (or whether a legislators constituent
whose representation has been unlawfully diluted) in violation of the
Fourteenth Amendment of the U.S. Constitution ever has a cognizable harm
if, for other reasons, the bill on which the unlawful vote dilution occurred
never takes effect. This Court has not addressed that issue, and the
appellate court below addressed it in a single sentence, without citation of
authority.
The issue is actually a close one, governed by differing
interpretations of the U.S. Supreme Courts decision in Coleman v. Miller ,
307 U.S. 433 (1939), that have been rendered by the federal circuit courts
of appeal. Compare Skaggs v. Carle , 110 F.3d 831, 833 (D.C. Cir. 1997)
(holding that vote dilution is itself a cognizable injury regardless whether
it has yet affected a legislative outcome); Kennedy v. Sampson , 511 F.2d
430, 436 (D.C. Cir. 1974); with Amodei v. Nevada State Senate , 99
Fed.Appx. 90 (2004) (unpublished) (affirming dismissal of vote dilution
claim by legislators because there is no cognizable injury in fact, sufficient
to establish an Article III controversy, where the vote in question never
resulted in legislation); 2 cf. Silver v. Pataki , 96 N.Y.2d 532, 539-40, 755
2 Although the Ninth Circuits jurisdiction includes California, its rulingson questions of federal law are not binding on this Court. People v.Crittenden , 9 Cal.4th 83, 120, fn. 3 (1994). Rather, the federal circuitcourts all stand in the same relationship to this court, not binding butentitled to great weight. People v. Burton , 48 Cal.3d 843, 854, 258 (1989).In this case, the Ninth Circuits decision in Amadoi is unpublished and
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N.E.2d 842, 848 (N.Y. 2001) (citing Coleman in holding that a single
member of the assembly had suffered an injury in fact with respect to the
alleged unconstitutional nullification of his vote sufficient to confer
standing). It is Petitioners contention that the argument in favor of
ripeness is not only better reasoned, but that the contrary view is so far-
reaching in its implication as to warrant this Courts attention now.
In Coleman , the Supreme Court of the United States expressly
recognized that state legislators, sufficient in number to have affected the
outcome of legislation, have a federal cause of action to challenge actions
by the state legislature that dilute or render nugatory the legislators vote.
307 U.S. at 438 (holding that state legislators have a plain, direct, and
adequate interest in maintaining the effectiveness of their votes). At issue
in Coleman was whether, in voting to ratify a federal constitutional
amendment, the lieutenant governor of the State was permitted to cast a
vote in the event of a tie. As this Court noted, the twenty senators [who
were petitioners in the case] were not only qualified to vote on the question
of ratification but their votes, if the Lieutenant Governor were excluded as
not being part of the legislature for that purpose, would have been decisive
in defeating the ratifying resolution. Id . at 441.
(continued) therefore not even citable in the federal courts. 9th Cir. Rule36-3(c). It is citable in the state courts, though only as persuasive, notprecedential authority. City of Hawthorne ex rel. Wohlner v. H & C
Disposal Co. , 109 Cal.App.4th 1668, 1678, fn. 5 (2003).
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Although Coleman involved a federal constitutional amendment,
several courts have recognized that a state legislatures failure to comply
with its own procedures may violate federal Due Process. See, e.g., Rea v.
Matteucci , 121 F.3d 483, 485 (9th Cir. 1997) (quoting Atkins v. Parker , 472
U.S. 115, 130 (1985)); Conway v. Searles , 954 F. Supp. 756, 767 (D. Vt.
1997). Fairness (or due process) in legislation is satisfied when legislation
is enacted in accordance with the procedures established in the state
constitution and statutes for the enactment of legislation, Richardson v.
Town of Eastover , 922 F.2d 1152, 1158 (4th Cir. 1991), not by legislation
enacted in violation of the procedures mandated by the state constitution, as
here. Legislative rules are judicially cognizable, and may therefore be
enforced by the Courts. Conway , 954 F. Supp. at 769 (citing Yellin v.
United States , 374 U.S. 109, 114 (1963); Christoffel v. United States , 338
U.S. 84 (1949)).
Moreover, the Supreme Court of the United States has expressly
suggested, albeit in dicta , that members of state legislative bodies have
standing to bring a vote dilution claim that arises from violations of state
law . Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 544 n.7 (1986)
(if . . . state law authorized School Board action solely by unanimous
consent, a disenfranchised school board member might claim that he was
legally entitled to protect the effectiveness of [his] vot[e]) (quoting
Coleman , 307 U.S., at 438) (brackets in original). A legislator in such
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circumstances would have to allege that his vote was diluted or rendered
nugatory under state law, and he would have a mandamus or like remedy
against the Secretary of the School Board. Id .
The hypothetical case described in Bender is nearly identical to the
case here. State lawArticle XIIIA, Section 3 of the California
Constitutionauthorizes legislative action on tax increases solely by
two-thirds vote. The disenfranchised legislatorsthe Legislator Petitioners
here, who together provided enough votes to defeat the tax increase bill
pursuant to the two-thirds vote requirement of Section 3claimed that their
vote was diluted below the weight required by state law. This is thus a
classic case of vote dilution, in violation of the Due Process Clause.
The Supreme Courts decision in Raines v. Byrd , 521 U.S. 811
(1997), is not to the contrary. Raines involved a challenge by only six
members of Congress4 of 100 Senators and 2 of 435 Representatives
who alleged that the federal line item veto diluted their legislative power.
The Court expressly distinguished Coleman , not because the legislative
action at issue in Coleman had taken effectit had notbut because the
number of legislators challenging the allegedly unlawful action in Coleman ,
unlike the number challenging the line-item veto in Raines , was sufficient
to have affected the outcome. Raines , 521 U.S., at 812. It was for this
reason that the Raines Court ruled that the institutional injury [plaintiffs]
allege is wholly abstract and widely dispersed (contra, Coleman ). Id. , at
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829; see also Silver v. Pataki , 755 N.E.2d 842, 849 (N.Y. 2001) (allowing,
under Coleman , vote nullification suit by a single legislator but disallowing,
under Raines , as a mere abstract political harm, a claim by the same
legislator that his ability to negotiate the Assemblys budgetary priorities
had been affected).
Indeed, if the contrary interpretation of Coleman were correct,
Coleman itself would have been decided differently. The federal
constitutional amendment at issue in Coleman the Child Labor
Amendment, 43 Stat. 670never did take effect. The Kansas legislature
was just one part in the amendment process, just as each house of the
California Legislature in this case is just one part of the legislative process.
The decision by the Kansas Lieutenant Governor at issue Coleman to cast a
tie-breaking vote in favor of ratification and then to deem Kansas
ratification as passed no more gave ultimate effect to the amendment
than did the decision by the Speaker of the California Assembly and the
President Pro Tem of the California Senate deeming AB 2 and SB 11 as
passed give effect to that tax increase. In both cases further action by
other bodies was required before the Act would become effective. Yet in
Coleman the Supreme Court considered the merits of the legislators claims
despite the fact that the allegedly unlawful vote dilution had not resulted in
the proposed amendment actually taking effect. The claim of vote dilution,
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by a group of legislators sufficient in number to have affected the outcome,
was alone sufficient to qualify as a cognizable injury.
In Skaggs v. Carle , 110 F.3d 831, 834 (D.C. Cir. 1997), the United
States Court of Appeals for the District of Columbia Circuit followed the
logic of Coleman to reach the merits of a vote dilution claim, holding that
vote dilution is itself a cognizable injury regardless whether it has yet
affected a legislative outcome.
This Court should grant the Petition for Review to consider what
was only dicta in Bender , and to determine whether the D.C. Circuits
decision in Skaggs , or the Ninth Circuits unpublished decision in Amadoi ,
is the more persuasive application of the Supreme Courts decision in
Coleman.
B. The Holding by the Court of Appeal Has Far-Reaching
Consequences
The implication of the Court of Appeals no harm, no foul holding
is far-reaching. Vote dilution or outright vote nullification claims by
individual voters could only be sustained if the candidate opposed (or
supported) by the disenfranchised voters was actually elected (or defeated).
That has never been a consideration in the vote dilution jurisprudence of the
United States Supreme Court, see, e.g., Miller v. Johnson 515 U.S. 900
(1995), yet the Court of Appeals holding compels such a result.
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The Court of Appeals outcome-determinative test is in conflict with
decisions from several federal circuit courts as well. The First, Fifth, Eighth
and D.C. Circuit Courts of Appeals, for example, have all considered vote
dilution claims, and none have applied the outcome determinative test
adopted by the Court of Appeal below. See , e.g. , Coalition for Sensible and
Humane Solutions v. Wamser , 771 F.2d 395 (8th Cir. 1985); Vote Choice,
Inc. v. DiStefano , 4 F.3d 26, 36-37 (1st Cir. 1993) (citing AVX Corp. v.
United States , 962 F.2d 108, 113-14 (1st Cir. 1992)); Daughtrey v. Carter ,
584 F.2d 1050, 1057 (D.C. Cir. 1978); Creel v. Freeman , 531 F.2d 286,
286-89 (5th Cir. 1976); Locklear v. North Carolina State Board of
Elections , 514 F.2d 1152, 1152-56 (4th Cir. 1975); Skaggs , 110 F.3d, at
833.
C. The Court of Appeals Holding Also Failed To Recognize
Cognizable Injuries of the Non-Legislator Petitioners that Have BeenRecognized by the Supreme Court of the United States and by SeveralFederal Circuit Courts
The Supreme Court has repeatedly recognized vote dilution claims
by voters. See Westberry v. Sanders , 376 U.S. 1 (1964); Franklin v.
Massachusetts , 505 U.S. 788 (1992). [T]he right of suffrage can be
denied by a debasement or dilution of the weight of a citizens vote just as
effectively as by wholly prohibiting the free exercise of the franchise. Roe
v. State of Ala. By and Through Evans , 43 F.3d 574, 580 (11th Cir. 1995)
(quoting Reynolds v. Sims , 377 U.S. 533, 554 (1964)).
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That the dilution occurs after the voters representative is elected,
and is therefore derivative of the legislators own vote dilution claim, is
immaterial. Michel v. Anderson , 14 F.3d 623, 626 (D.C. Cir. 1994); see
also Skaggs , 110 F.3d, at 834. As the D.C. Circuit noted in Michel : It
could not be argued seriously that voters would not have an injury if their
congressman was not permitted to vote at all on the House floor. 14 F.3d,
at 626. Depriving voters of the full weight of the representation guaranteed
by the California Constitutions two-thirds vote requirement is only a
difference in degree from the hypothetical embraced in Michel as a self-
evident constitutional violation.
The decision below dismissing the vote dilution claims of the non-
Legislator Petitioners is thus contrary to well-established precedent of the
Supreme Court and in conflict with holdings of the D.C. Circuit in Michel
and Skaggs . This Court should grant the petition of review to consider the
implications of the appellate courts ripeness bar.
The appellate courts decision has also effectively nullified the votes
several members of Petitioner Howard Jarvis Taxpayers Association
successfully cast in support of Proposition 13 in 1978, by which an
overwhelming percentage of Californians approved the two-thirds vote
amendment to the state Constitution. The right to vote constitutes more
than just the right to show up at a voting booth. It encompasses the right to
have that vote counted and, if successful, to have the results of the vote
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given effect. Gray v. Sanders , 372 U.S. 368, 380 (1963); United States v.
Mosley , 238 U.S. 383, 386 (1915).
By deeming tax increases as passed by simple majority rule,
Respondent Legislature essentially treated the successful vote of some
Petitioners for Proposition 13 as without any effect, at least with respect to
the two-thirds vote provision. By so doing, the Legislature deprived
Petitioners of their right to an effective vote, a right protected by the
Fourteenth Amendment of the U.S. Constitution.
In addition, Respondent Legislature essentially gave greaterindeed
dispositiveweight to the votes of those who opposed Proposition 13, in
violation of the Equal Protection Clause of the Fourteenth Amendment.
See Bush v. Gore , 531 U.S. 98, 104-05 (2000) (Having once granted the
right to vote on equal terms, the State may not, by later arbitrary and
disparate treatment, value one persons vote over that of another) (citing
Harper v. Virginia Bd. Of Elections , 383 U.S. 663, 665 (1966)).
Because these fundamental federal voting rights are so clearly
established, and so clearly violated here, the decision of the Court of
Appeal dismissing Petitioners federal constitutional claims is clearly
contrary to the decisions of the Supreme Court of the United States. It is
therefore incumbent upon this Court to grant the Petition of Review in
order to bring the interpretation by the courts of this state of these
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fundamental federal constitutional rights into line with the interpretation
that has repeatedly been given by the Supreme Court of the United States.
D. The Court of Appeals Decision Not to Consider the Illegalityof the Legislatures Action Also Leaves Unaddressed PetitionersClaims that, by Altering the Structure of the State Constitution,Petitioners Federal Constitutional Right to a Republican Form of Government Has Been Violated
Article IV, Section 4 of the United States Constitution provides that
The United States shall guarantee to every State in the Union a Republican
Form of Government. Although claims premised on the Republican
Guarantee Clause have long been viewed as nonjusticiable political
questions in most circumstances, see Luther v. Borden , 48 U.S. (7 How.) 1,
46-47 (1849), Justice OConnor noted for the Supreme Court in New York
v. United States that perhaps not all claims under the Guarantee Clause
present nonjusticiable political questions. 505 U.S. 144, 183 (1992).
Contemporary commentators, she noted, have likewise suggested that
courts should address the merits of such claims, at least in some
circumstances. Id. at 185 (citing Lawrence H. Tribe, American
Constitutional Law 398 (2d ed. 1988); John Hart Ely, Democracy and
Distrust: A Theory of Judicial Review 118, n.122-23 (1980); William M.
Wiecek, The Guarantee Clause of the U.S. Constitution 287-89, 300
(1972); Deborah Jones Merritt, The Guarantee Clause and State Autonomy:
Federalism for a Third Century , 88 Colum. L. Rev. 1, 70-78 (1988); Arthur
E. Bonfield, The Guarantee Clause of Article IV, Section 4: A Study in
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Constitutional Desuetude , 46 Minn. L. Rev. 513, 560-65 (1962)). Several
courts have acknowledged that the Republican Guarantee Clause might
present justiciable questions in the wake of New York v. United States , but
thus far all have found that the Clause had not been violated in the
particular circumstances at issue in the cases. See Texas v. United States ,
106 F.3d 661, 667 (5th Cir. 1997); Adams v. Clinton , 90 F. Supp. 2d 35
(D.D.C. 2000); New Jersey v. United States , 91 F.3d 463, 468-69 (3rd Cir.
1996); Padavan v. United States , 82 F.3d 23, 27-28 (2nd Cir. 1996); Deer
Park Ind. Sch. Dist. v. Harris County Appraisal Dist. , 132 F.3d 1095, 1099-
1100 (5th Cir. 1998); City of New York v. United States , 179 F.3d 29 (2nd
Cir. 1999); Kelley v. United States , 69 F.3d 1503, 1511 (10th Cir. 1995);
but see State ex. rel. Huddleston v. Sawyer , 932 P.2d 1145 (Or. 1997)
(holding that Republican Guarantee claim is nonjusticiable).
This case presents one of the rare instances in which a Republican
Guarantee claim is viable, and should have been addressed by the Court of
Appeal on its merits. The essence of the claim, drawn from New York v.
United States , is whether a states citizens may structure their government
as they see fit. Kelley , 69 F.3d at 1511. In New York v. United States
itself, the Supreme Court dismissed the guarantee clause claim because the
statute in that case did not pose any realistic risk of altering the form or the
method of functioning of New Yorks government. 505 U.S. at 186. By
imposing, through a constitutional amendment, a two-thirds vote
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requirement for new and increased taxes, the citizens of California adopted
a new structure for their government with a new method of functioning,
making it more difficult to increase taxes. Actions that have a realistic
risk of altering the states form of government from what the citizens of
the state have themselves adopted have been held to be amenable to
Republican Guarantee Clause claims. Texas , 106 F. 3d at 667; New Jersey ,
91 F.3d at 468-69. Essentially, the courts are supposed to protect the
structural preferences of a states citizens, serving as a sort of structural
referee. Brzonkala v. Virginia Polytechnic Inst. & State Univ. , 169 F.3d
820, 895 (4th Cir. 1999), affd sub nom. United States v. Morrison , 529
U.S. 598 (2000). The Legislatures decision to ignore the governing
structure imposed upon it by the States citizens, via a constitutional
amendment, is just the kind of violation of the Article IV guarantee of a
Republican form of government that the federal courts have begun to
entertain. The Court of Appeal should have considered it as well, and it is
now incumbent upon this Court to direct it to do so.
CONCLUSION
The financial challenges facing California are daunting. However,
there is no fiscal urgency exception to the Constitution. The people of
this state imposed a super-majority consensus requirement for the
enactment of new taxes. If they decide that the policy behind that
requirement is no longer workable, the people can change their
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Constitution. In the meantime, however, the rights granted and obligations
imposed by that Constitution ought to be enforced.
Precedent and basic constitutional theory compel the conclusion that
the Court of Appeal not only had the authority, but the obligation, to
consider Petitioners claims on their merits. This Court should so hold, and
either direct the Court of Appeal to consider the merits of the claims, or
order full briefing on the merits here, for determination by this Court.
DATED: January 20, 2009.
Respectfully submitted,
JOHN C. EASTMANANTHONY T. CASO, Of Counsel Center for Constitutional Jurisprudence
JONATHON M. COUPAL
TREVOR A. GRIMMTIMOTHY A. BITTLEHoward Jarvis Taxpayers Association
By _____________________________ANTHONY T. CASO
Attorneys for Petitioners
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APPENDIX
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CERTIFICATE OF COMPLIANCE
Pursuant to California Rule of Court 8.204(c)(1), I hereby certify
that the foregoing PETITION FOR REVIEW is proportionately spaced, has
a typeface of 13 points or more, and contains 5,511 words.
DATED: January 20, 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 January 20, 2009, true copies of PETITION FOR REVIES were
placed in envelopes addressed to:
AARON DAN SILVAOffice of Legislative Counsel925 L Street, 9th Floor
Sacramento, CA 95814
Office of the Attorney GeneralPO Box 944255Sacramento, CA 94244
STEVEN L. MAYERHoward Rice Nemerovski Canady Falk & RabkinThree Embarcadero Center, 7th FloorSan Francisco, CA 94111
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. A copy was served by hand on the
Clerk, California Court of Appeal, Third Appellate District.
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I declare under penalty of perjury that the foregoing is true and
correct and that this declaration was executed this 20th day of January,
2009, at Sacramento, California.
_______________________________Anthony T. Caso