Why I filed an amicus brief with California’s Supreme Court

Last Monday, I filed an amicus brief with the California Supreme Court, in the case Legislature v. Weber (S281977). The case attempts to determine whether a proposed initiative, the “Taxpayer Protection and Government Accountability Act,” should go on the ballot in November. In this case, the Court asks two questions:

(1) Does the Taxpayer Protection and Government Accountability Act constitute an impermissible attempted revision of the California Constitution by voter initiative? (2) Is this initiative measure subject to invalidation on the ground that, if adopted, it would impair essential government functions?

In lay terms, (1) does it break fundamental rules about how government is supposed to work in California and (2) does it break government itself?

These happen to be key questions for California independence. If California became a country, how long would our new democracy last if a single initiative could wreck our system of government? And in the present day, what would be the point of working to get more autonomy for California if our own state and local governments were so hamstrung they couldn’t even provide essential government services?

I am not a lawyer, but I happen to be weirdly well-versed on the court’s first question: when does an initiative cross the line from amendment (a change which works within the lines of our existing Constitution) to revision (a sweeping or fundamental change)?

In 2017, I noticed that an existing, poorly drafted California independence initiative would almost certainly have been struck down by the courts for trying to revise (not amend) our Constitution, and wrote up some ideas about how to fix it. Later that year, I had the opportunity to help help write a new initiative that would help California become either an independent country or a super-autonomous state within the U.S., and do so without crossing the line from amendment into revision.

Working on the initiative gave me the opportunity to argue on a (then) prominent taxpayer advocacy blog that the real question for California taxpayers is how much of our tax dollars go through state and local government (which we control) vs. the federal government (which we don’t). I later got the opportunity to point out, on the same blog, that supposed “Gas Tax Repeal Heroes” actually voted to extend federal gas taxes on Californians; they apparently just had a problem with Californians taxing ourselves.

In other words, viewing the world through the lens of California independence allowed me to see that most California “taxpayer advocacy” is a sham; weakening Californians ability to tax ourselves through our own state and local government just makes us more dependent on the federal government, which is more than happy to raise our taxes and divert our tax dollars to other states.

Which is why I was willing to put hours of my own time into writing a 39-page brief to help take down this “taxpayer protection” act. This overreaching, arrogant, poorly drafted initiative is the culmination of years of myth-making about taxes with the realities of California government. California is the only democracy we have, and I intend to protect it however I can.

While my amicus brief was ultimately only one of 15 filed in the case (including one by former governor Jerry Brown), I’m proud to say I noticed two very important things about the proposed initiative that other briefs at most touched on:

First, I noticed that while the proposed initiative requires Californians to vote on any law that increases or extends any taxes on any taxpayer, it doesn’t give voters the same right to stop government from creating new tax loopholes. This creates a “ratchet effect” where both our legislature and any executive branch employee with the authority to do so could create new tax loopholes but not close them again. Essentially it turns representative government into a machine whose real goal is to constantly narrow the scope of tax laws, regardless of what we actually want our elected officials to accomplish.

Second, this proposed initiative seriously messes with the local initiative, both by requiring a 2/3 vote for certain initiatives to pass, and by gutting voters’ ability to amend their own city charters by initiative. There’s certainly something troubling about using the statewide initiative to destroy the local one; there’s a good argument that it’s also illegal. California has its own version of federalism: charter cities (cities that have adopted their own city charter) have sovereignty over their own municipal affairs, including how they conduct city elections. Charter cities had the initiative before the statewide initiative was created by a 1911 constitutional amendment, and their power to adopt the initiative system springs from the 1879 revision that created California’s current constitution. So what business does a statewide initiative have messing with charter cities’ initiative systems?

The court is probably going to hold its oral arguments in late Feburary or early March. My dream is to see some of my examples and discoveries come up in oral arguments or the court’s final decision. This isn’t as unrealistic as it might sound—as I note in the brief, I found the “no alien eligible to citizenship” clause in an old version of California’s constitution that was key to blowing apart the plaintiff’s argument in Lacy v. San Francisco, a voting rights case that was decided last year.

I’m not expecting everyone to want to read a 39-page brief, but if you’ve read this far already, I think you might enjoy giving it a try! I tried my best to keep my arguments simple, my examples relatable, and to only use legalese where it was important to have a very specific meaning.

If you’ve read the brief and you have any questions about it, feel free to ask at c.c.marin@ic.institute. The more California independence supporters understand these fundamental questions about California government, the better off we are.