Is Prop. 13 vulnerable? Since 1978, when this photo was taken in Manhattan… (Los Angeles Times )
What if the most basic facts of California politics and government were suddenly upended? How different would the political life of this state be if the constitutional requirement that tax increases can only be approved by a two-thirds "supermajority" of the Legislature went away, and instead a simple majority could do the job?
That provocative possibility has seemed beyond imagination ever since 1978, when Californians approved Proposition 13, the landmark initiative whose chief aim was to lower and control property taxes but that also imposed the two-thirds requirement, making it much more difficult for the government to raise all taxes. Now, after three decades of accepting the conventional wisdom that Proposition 13 changed life forever, a potentially blockbuster lawsuit challenges that assumption: The suit argues that the measure was improperly approved and should be stricken from the books.
The case is no gimmick. It's brought by Charles Young, the longtime and highly regarded former chancellor of UCLA, and the lawyers are led by William A. Norris, a retired U.S. 9th Circuit Court of Appeals judge and a leader of Los Angeles' civic and legal community. Norris came up with the idea, which struck him after reading the California Supreme Court's ruling that upheld Proposition 8, the voter-approved ban on same-sex marriage.
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The issue in that case was whether the proposition was an "amendment" or a "revision" to the California Constitution. The former only requires a majority vote of the people, while the latter needs a supermajority vote of both houses of the Legislature as well as a majority of the public. That's because amendments are defined as "an addition or change within the lines of the original instruments," but revisions go further. A revision is considered a "change in the basic plan of California government," which alters the power of any branch or the relationship between them.
In analyzing Proposition 8, the state Supreme Court, led by Chief Justice Ronald George, laid out those definitions and concluded that the measure was properly thought of as an amendment, for though it did great and noxious damage to the rights of gay Californians, it did not reach the structure of government itself. Reading the court's opinion in that case, Norris said he had two reactions.
"I thought the outcome was correct … even though I didn't like the outcome," he said in an interview last week. "And I was intrigued by Ron George's review of the various California Supreme Court cases over the decades on the distinction between an amendment and a revision."
That started Norris thinking: Was Proposition 13, which was passed as an amendment, really a revision? He acknowledges that his colleagues at the law firm Akin Gump, where he now practices, were skeptical at first, but they set to work researching the question.
Passed at a time when property taxes were sharply on the rise and California was running a surplus, Proposition 13 limited property taxes to 1% of a property's value and restricted the annual increases on assessed values. Those provisions seem like a traditional amendment — they change or add specific rules within a larger constitutional set of provisions. But Proposition 13 also required that "any change in state statute which results in a taxpayer paying a higher tax" must be approved by two-thirds of both houses of the Legislature.
That language has had a profound impact on the power of the executive and the Legislature. The power that it constrains — the authority to raise public funds — is among the most fundamental of government. And the requirement gives more weight to some legislators — and, by extension, their constituents. As the lawsuit notes, "legislators opposing a tax increase are given the functional equivalent of more votes than those legislators who favor such proposals."
The result is that Proposition 13 has altered power in the Capitol and appreciably weakened the ability of the Legislature to pass new taxes, which sounds an awful lot like a "change in the basic plan" of state government. It also has had important political consequences. Because Republicans hold just over one-third of the seats of both houses, they have enough votes to block any tax increase if they band together; those willing to break ranks on tax increases have leverage to get their legislation or projects approved. If the necessary margin were changed to a simple majority, Republican power would evaporate overnight.
Given the sweep of its implications, the lawsuit filed by Norris and his associates would impose a stern burden on the Supreme Court if it finds the logic compelling. Not only would the court be faced with invalidating an enormously popular blockade against tax increases, but also with wiping out a system that has governed California for more than 30 years. Would it have the courage to do so? Because of Norris and his colleagues, we may be about to find out. And Proposition 13 could fall.