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.