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Funds Earmarked for School Desegregation : U. S. Judge's Tax Plan Galls Kansas City

November 06, 1987|BOB SECTER | Times Staff Writer

KANSAS CITY — Joe Zubeck was angered this week when he got a $1,009 property tax bill for his hobby store--up from $674 only last year.

But what made Zubeck, like many other taxpayers here, really howl in protest was the reason behind the bigger tax bite: a recent, potentially precedent-setting federal court order raising taxes by judicial fiat to pay for a school desegregation plan.

"Nobody got a chance to vote on it," griped Zubeck, who is thinking of moving his shop across the Missouri River to Kansas, where taxes are much lower. "That's the part that's galling me more than anything else."

U. S. District Court Judge Russell G. Clark ordered the increases Sept. 25 after voters had repeatedly rejected bond issues and tax hikes designed to finance a court-ordered desegregation plan for the 36,000-pupil Kansas City school district, where more than half the population is white but three out of four students belong to minorities.

Stunned by More Details

On Thursday, workers and homeowners got a double shock as they received new property tax bills and picked up morning papers to read legal notices outlining other details of the plan.

Critics contend that it amounts to a judicial raid on the legislative power of the purse. They contend that if it is upheld on appeal, it will represent a sweeping encroachment of judicial power into an area that has been reserved for legislators or voters themselves since Revolutionary War days.

"This is King George stuff," griped Jackson County Executive Bill Waris. "This is why this country was founded--to prevent this kind of stuff. I had people call me to ask whether they shouldn't send in their voter identification cards to Judge Clark. They said they didn't need them any more."

Voters Turn Down Financing

The judge and his supporters, however, say it is clear that voters have been thwarting court-ordered desegregation efforts by refusing to fund them. In the last two years, four different fund-raising schemes have been turned down by district voters. "A majority has no right to deny others the constitutional guarantees to which they are entitled," Clark wrote in an opinion explaining his September ruling.

It was three years ago that Clark first found school officials and the state of Missouri guilty of fostering segregation in the district, which encompasses a large part of Kansas City as well as some nearby suburbs. Later, he ordered a $265-million plan to fix up crumbling schools and build several new magnet facilities.

Postmen this week began delivering the first property tax bills issued to district residents since Clark ordered the school levy virtually doubled, sending total property tax bills soaring an average of 43%.

And Thursday's newspaper notice outlined an even more controversial wrinkle of Clark's ruling--a 25% surcharge on the 6% Missouri income tax applied to anyone who works in the district regardless of where they live. Under the order, even someone who lived across the Missouri River in the state of Kansas but who worked in downtown Kansas City would be slapped with the increased levy. Employers were instructed to withhold the extra money from worker paychecks retroactive to Oct. 1.

Calls Order Unnecessary

County Executive Waris, who is responsible for property tax billing and collection in the county, insisted that Clark's order was unnecessary and said other ways could have been found to raise money for the schools. Nevertheless, he chose to implement the tax hike rather than risk a contempt citation. Waris said lawyers for the state of Missouri are expected to appeal the ruling to the U.S. 8th Circuit Court of Appeals in St. Louis.

The case presents a legal thicket that both sides agree could eventually lead to the U.S. Supreme Court and a landmark decision on the reach of judicial power.

Past federal court rulings have had the effect of forcing tax increases on local governing bodies, but none so sweeping as the one ordered by Clark. In addition, no federal judge has ever ordered an increase in a broad-based income tax levy.

Michael McConnell, a constitutional law expert at the University of Chicago, called Clark's ruling an "unprecedented" usurpation of the power of lawmakers. "The decision to tax and spend is really at the core of legislative authority," said McConnell, a conservative theorist.

Fears Rash of Tax Hikes

He argued that Clark's ruling appeared to confuse the "principle of non-discrimination with a right to a certain high quality of government service." Should the order be upheld on appeal, McConnell predicted, it would lead to a rash of judicially imposed tax hikes to fund not only schools but parks, prisons, schools, health care, public housing, law enforcement and a variety of other programs that might be the subject of federal litigation.

Other experts see such predictions as alarmist and defend Clark's action as measured and appropriate under the circumstances. "I cannot criticize a remedy simply because it's sweeping," said Jack Balkin, a constitutional law professor at the Kansas City campus of the University of Missouri.

'It Looks Confiscatory

"You have to ask whether it's necessary. . . . If you only see this as a judge raising taxes for no good reason, it looks confiscatory, but if you view it as a judge trying to right a grievous wrong, really he has no other choice."

And Arthur Benson II, a lawyer representing several black families who brought the initial discrimination suit, said the power of a federal judge to raise taxes is essential to his responsibility to protect individual constitutional rights.

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