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 the

Court of Appeal, Third Appellate District
No. C060795

JOHN C. EASTMAN, No. 193726 JONATHON COUPAL, No. 107815

ANTHONY T. CASO, No. 88561
Of Counsel
Ctr. for Const. Jurisprudence
c/o Chapman Univ. Sch. of Law
One University Drive
Orange, California 92866
Telephone: (714) 628-2500
TREVOR A. GRIMM, No. 34258
TIMOTHY A. BITTLE, No. 112300
Howard Jarvis Taxpayers Assn.
921 Eleventh Street
Suite 1201
Sacramento, California 95814
Telephone: (916) 444-9950

Attorneys for Petitioners

 CERTIFICATE OF INTERESTED
ENTITIES 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:

Τ There are no interested entities or persons to list in this

✓
Certificate as defined in the California Rules of Court.

Name of Interested Entity or Person Nature of Interest

(Alphabetical order, please.)
1.

2.

3.

Please attach additional sheets with Entity or Person Information,

if necessary.

_____________________________________ January 20, 2009.

ANTHONY T. CASO

Printed Name: Anthony T. Caso

State Bar No:
Firm Name & Address:
88561
Center for Constitutional Jurisprudence
c/o Chapman University School of Law
One University Drive
Orange, CA 92866

Party Represented: Petitioners

i
 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 OF
CONSTITUTIONAL LIMITS ON LEGISLATIVE POWER ..................... 7

II. THE COURT OF APPEAL’S HOLDING THAT

PETITIONERS’ DID NOT HAVE A COGNIZABLE INJURY
FROM VOTE DILUTION IS INCONSISTENT WITH
PRECEDENT OF THE UNITED STATES SUPREME COURT
AND IN DIRECT CONFLICT WITH DECISIONS OF SEVERAL
FEDERAL CIRCUIT COURTS ................................................................. 11

A. THE FACT THAT AN UNLAWFULLY “PASSED” BILL

DOES NOT ULTIMATELY TAKE EFFECT DOES NOT
NEGATE VOTE DILUTION INJURY ................................................ 11

B. THE HOLDING BY THE COURT OF APPEAL HAS FAR-

REACHING CONSEQUENCES .......................................................... 17

C. THE COURT OF APPEAL’S HOLDING ALSO FAILED TO

RECOGNIZE COGNIZABLE INJURIES OF THE NON-
LEGISLATOR PETITIONERS THAT HAVE BEEN
RECOGNIZED BY THE SUPREME COURT OF THE

ii
 UNITED STATES AND BY SEVERAL FEDERAL CIRCUIT
COURTS ................................................................................................ 18

D. THE COURT OF APPEAL’S DECISION NOT TO

CONSIDER THE ILLEGALITY OF THE LEGISLATURE’S
ACTION ALSO LEAVES UNADDRESSED PETITIONERS’
CLAIMS YHAT, BY ALTERING THE STRUCTURE OF THE
STATE CONSTITUTION, PETITIONERS’ FEDERAL
CONSTITUTIONAL RIGHT TO A REPUBLICAN FORM OF
GOVERNMENT HAS BEEN VIOLATED .......................................... 21

CONCLUSION ........................................................................................... 23

APPENDIX ................................................................................................. 25

CERTIFICATE OF COMPLIANCE .......................................................... 26

DECLARATION OF SERVICE ................................................................. 27

iii
 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), aff’d 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

iv
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

v
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) ............................... 22
People 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

vi
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

vii
 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?

1
 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

2
fact that an additional harm— collection of the illegal taxes—did 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 Appeal’s 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 Legislature’s scheme can be reconciled with Article

XIIIA, Section 3 of the California Constitution.

3
 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.

4
 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 state’s 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 state’s 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 lower
revenues to the state, as the increased taxes drive business from the state
and otherwise burden economic activity.

5
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

Governor’s 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.

6
 This Petition for Review does not ask the courts to enter this

political fray or to direct the Legislature to resolve the state’s 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

I
THE SEPARATION OF POWERS DOCTRINE REQUIRES,
RATHER THAN FORBIDS, JUDICIAL ENFORCEMENT OF
CONSTITUTIONAL 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

7
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

8
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 Appeal’s 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

9
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

here—there 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 vote—a 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 state’s ability to plan

its finances.

10
 II
THE COURT OF APPEAL’S HOLDING THAT PETITIONERS’ DID
NOT HAVE A COGNIZABLE INJURY FROM VOTE DILUTION IS
INCONSISTENT WITH PRECEDENT OF THE UNITED STATES
SUPREME 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 Court’s 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 Not

Ultimately Take Effect Does Not Negate Vote Dilution Injury

The issue raised by the Court of Appeal’s decision with respect to

the ripeness of Petitioners’ claims is whether an individual legislator whose

11
vote has been unlawfully diluted (or whether a legislator’s 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 Court’s 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 Circuit’s jurisdiction includes California, its rulings
on questions of federal law are not binding on this Court. People v.
Crittenden, 9 Cal.4th 83, 120, fn. 3 (1994). Rather, the federal circuit
courts all stand in the same relationship to this court, not binding but
entitled to great weight. People v. Burton, 48 Cal.3d 843, 854, 258 (1989).
In this case, the Ninth Circuit’s decision in Amadoi is unpublished and

12
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 Court’s 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 legislator’s 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. Rule
36-3(c). It is citable in the state courts, though only as persuasive, not
precedential authority. City of Hawthorne ex rel. Wohlner v. H & C
Disposal Co., 109 Cal.App.4th 1668, 1678, fn. 5 (2003).

13
 Although Coleman involved a federal constitutional amendment,

several courts have recognized that a state legislature’s 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 law—Article XIIIA, Section 3 of the California

Constitution—authorizes legislative action on tax increases “solely” by

two-thirds vote. The disenfranchised legislators—the Legislator Petitioners

here, who together provided enough votes to defeat the tax increase bill

pursuant to the two-thirds vote requirement of Section 3—claimed 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 Court’s decision in Raines v. Byrd, 521 U.S. 811

(1997), is not to the contrary. Raines involved a challenge by only six

members of Congress—4 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 effect—it had not—but 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 Assembly’s 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. 670—never 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. Circuit’s

decision in Skaggs, or the Ninth Circuit’s unpublished decision in Amadoi,

is the more persuasive application of the Supreme Court’s decision in

Coleman.

B. The Holding by the Court of Appeal Has Far-Reaching

Consequences

The implication of the Court of Appeal’s “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 Appeal’s holding compels such a result.

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 The Court of Appeal’s 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 Appeal’s Holding Also Failed To Recognize

Cognizable Injuries of the Non-Legislator Petitioners that Have Been
Recognized by the Supreme Court of the United States and by Several
Federal 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 citizen’s 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 legislator’s 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 Constitution’s 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 court’s ripeness bar.

The appellate court’s 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

19
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 greater—indeed

dispositive—weight 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 person’s 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 Appeal’s Decision Not to Consider the Illegality

of the Legislature’s Action Also Leaves Unaddressed Petitioners’
Claims 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 O’Connor 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

21
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 state’s 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 York’s government.” 505 U.S. at 186. By

imposing, through a constitutional amendment, a two-thirds vote

22
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 state’s 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 state’s citizens, serving as a sort of “structural

referee.” Brzonkala v. Virginia Polytechnic Inst. & State Univ., 169 F.3d

820, 895 (4th Cir. 1999), aff’d sub nom. United States v. Morrison, 529

U.S. 598 (2000). The Legislature’s decision to ignore the governing

structure imposed upon it by the State’s 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

23
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. EASTMAN
ANTHONY T. CASO, Of Counsel
Center for Constitutional Jurisprudence

JONATHON M. COUPAL
TREVOR A. GRIMM
TIMOTHY A. BITTLE
Howard Jarvis Taxpayers Association

By _____________________________
ANTHONY T. CASO

Attorneys for Petitioners

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APPENDIX

25
 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 SILVA

Office of Legislative Counsel
925 L Street, 9th Floor
Sacramento, CA 95814

Office of the Attorney General

PO Box 944255
Sacramento, CA 94244

STEVEN L. MAYER
Howard Rice Nemerovski Canady Falk & Rabkin
Three Embarcadero Center, 7th Floor
San 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.

27
 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

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