Legislature(1995 - 1996)

04/12/1995 01:17 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 HJR 30 - AMEND U.S. CONST. TO LIMIT FED. COURTS                         
                                                                               
 CHAIRMAN PORTER introduced HJR 30 for consideration, amending the             
 U.S. Constitution to limit federal court's actions.                           
                                                                               
 Number 360                                                                    
                                                                               
 REPRESENTATIVE VEZEY, sponsor of HJR 30, stated HJR 30 is in                  
 response to a move going through various state legislatures,                  
 advocated primarily by the Missouri State Legislature where it was            
 initiated.  He feels all are aware of legislative-type action                 
 coming out of the Judiciary Branch of government which has gotten             
 to the point where they are actually levying taxes.  This                     
 resolution merely requests that the Congress of the United States             
 prepare an amendment to the Constitution of the United States                 
 prohibiting the federal court from ordering a legal subdivision of            
 a state or the state itself from imposing taxes.  Representative              
 Vezey then asked if there were questions.                                     
                                                                               
 Number 380                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN commented that he was not familiar with            
 this action and asked for examples of where this is occurring.                
                                                                               
 REPRESENTATIVE VEZEY said there are numerous examples, but the most           
 notable case he was aware of was in St. Louis, Missouri where a               
 property tax was levied on the citizens of that county to support             
 a court ordered school improvement program, which had to do with              
 some of the communities being racially imbalanced, and rather than            
 busing, they were going to a "magnet-type" school system.  The                
 court set this plan up and ordered the taxes to be assessed to pay            
 for it.                                                                       
                                                                               
 CHAIRMAN PORTER called for further testimony on HJR 30.                       
                                                                               
 REPRESENTATIVE FINKELSTEIN commented the country has changed a bit            
 over time, but it isn't hard to recall some of the past activities            
 where the courts have had to go in and try to involve themselves in           
 desegregation efforts.  Of equal importance is the general concept            
 of equal treatment of our citizens which has not always occurred.             
 He feels when there is a certain locale deciding to go a different            
 direction, there may be an extreme circumstance that requires a               
 court imposed solution.  Representative Finkelstein thinks there              
 will be times when these kinds of actions are necessitated to                 
 pursue equal treatment the American people expect under the                   
 Constitution.  He stated for that reason, he would be inclined to             
 oppose the resolution.                                                        
                                                                               
 Number 440                                                                    
                                                                               
 REPRESENTATIVE DAVIS also had some concern with the resolution                
 based on the example given by the sponsor, because if that is the             
 primary reason, she has seen that the "magnet-type" schools did               
 work in areas where they were implemented and so, she cannot                  
 support HJR 30.                                                               
                                                                               
 REPRESENTATIVE BUNDE said it is not whether the magnet schools work           
 or not.  He believes the magnet schools in St. Louis did not work,            
 but in any case, it is whether the court should be able to impose             
 taxes or not.  He said he thinks that is the germane issue.                   
                                                                               
 REPRESENTATIVE VEZEY appreciated Representative Davis' remarks and            
 said he used that example because that was the case that went to              
 the Supreme Court.  That is where the Supreme Court clearly came              
 down and said the courts can impose taxes.                                    
                                                                               
 CHAIRMAN PORTER commented he was going to support this resolution             
 and he does not look at it as reducing the court's ability to deal            
 with discrimination cases at all.  The court can still order that             
 community do what they wanted them to do.  He thinks it is                    
 inappropriate, and an improper application of the separation of               
 power to say how you will do it by instituting taxes.  Chairman               
 Porter said it is up to the community as to how they want to abide            
 by that ruling.  They will have to abide by it, but they may want             
 to opt to amend some other targets to provide the funds to what the           
 court has ordered.  So, it isn't a matter of diminishing the                  
 court's ability to support civil rights.  He went on to say he                
 feels it is a clear separation of powers issue, as the power or               
 appropriation is the legislature's and the power of constitutional            
 interpretation of the court's.                                                
                                                                               
 REPRESENTATIVE DAVIS asked what if the court says, "You will take             
 it from this pool of money"?                                                  
                                                                               
 CHAIRMAN PORTER responded the St. Louis case was upheld by the                
 Supreme Court that they will do this by increasing the property               
 tax.                                                                          
                                                                               
 REPRESENTATIVE FINKELSTEIN said it is hard for him to argue the               
 particular circumstances, but he would suspect the way it works is,           
 it is true there have been numerous cases where some local                    
 subdivision or state has been in violation that in most cases where           
 the court orders, yes, you are going to come into compliance and do           
 it by allocating resources to address this concern.  He suspects              
 most of them do it.  Representative Finkelstein continued to say              
 that some still refuse and this is a historic fact.  He agrees that           
 doesn't affect most, only some of them.  Then the court orders an             
 action to uphold our Constitution which would become completely               
 ineffective if they have no remedy left in which to impose a                  
 solution because most states realize the court has no power to go             
 beyond what is really advice, so what effect does it have?                    
                                                                               
 CHAIRMAN PORTER replied usually those kinds of orders have the                
 effect of substantial federal funding behind them and if you don't            
 abide by the wishes of the feds, you lose your funding.  He said              
 his response to that is if there was such a community so                      
 recalcitrant as to disobey the order of the court, he doubts they             
 would tax themselves anyway.  So the court would still have to use            
 other sanctions to enforce their orders.  It is just the issue of             
 appropriation he is dealing with here.                                        
                                                                               
 REPRESENTATIVE VEZEY said he thinks Representative Finkelstein                
 missed the point because the courts deal with the recalcitrant                
 public officials on a daily basis, and the court has often found              
 those individuals to be in contempt of court and provided them                
 housing in the local correctional institution.  He stated there are           
 many avenues available for enforcement, but when the ability of the           
 court to actually assess taxes was upheld by the U.S. Supreme                 
 Court, there was a tremendous shift in the separation of powers               
 issue.  Representative Vezey said it was a tremendous usurpation of           
 power by the Judicial Branch of government and that is what he                
 believes the committee is addressing...that we do have a system of            
 separation of powers.                                                         
                                                                               
 REPRESENTATIVE FINKELSTEIN has no doubt that is the case, but he              
 doesn't see where there has been a high level of this occurring.              
 The question is, "Should the court system have the ability to do              
 this in the most extreme cases."   He didn't think there was a                
 pattern to show it has been abused.                                           
                                                                               
 CHAIRMAN PORTER asked if there was further discussion on HJR 30.              
                                                                               
 REPRESENTATIVE GREEN said there was a specific amendment and                  
 staying wide of a constitutional convention, but asked if there was           
 any concern of the sponsor that by doing this, or attempts to amend           
 or insist the federal government stick with what is already there,            
 that this will add fuel to opening the whole Constitution at the              
 constitutional convention.                                                    
                                                                               
 REPRESENTATIVE VEZEY replied the Constitution of the United States            
 is explicitly clear in how a constitutional convention is called.             
 This does not come any closer to calling a constitutional                     
 convention than does the dropping of a gavel of the chairman of               
 this committee.  A state cannot initiate a constitutional                     
 amendment; only petition the Congress to initiate a constitutional            
 amendment.  Only the Congress can initiate an amendment, which has            
 to be ratified by three-fourths of the states.                                
                                                                               
 Number 600                                                                    
                                                                               
 REPRESENTATIVE GREEN said he had not intended to get into a debate            
 and he is familiar with the constitutional law process.  His point            
 was in agreement with Representative Vezey's "gavel dropping"                 
 comparison and he disagrees with the fact it is only heard in this            
 room.  He said it was heard in all 50 states.  His point was, will            
 this cause anything, because it now goes to all 50 states                     
 requesting that there be a constitutional amendment, add any fuel             
 to the fire to what some perceive as a ground swell toward that               
 end?  Representative Green champions the idea, and he thinks this             
 is really necessary, but is concerned about, "How far does this               
 runaway horse go?"                                                            
                                                                               
 REPRESENTATIVE VEZEY answered this resolution is addressed to the             
 Congress of the United States, the President, the Vice President,             
 the Senate, and the House.  It would be passed on to the presiding            
 officers of the legislatures of our sister states, which he assumes           
 would be all 50 states.  It's just an indication we would like our            
 Congressional delegation to support an amendment to this effect.              
                                                                               
 CHAIRMAN PORTER commented he understands that Representative Vezey            
 doesn't think it will cause any difference, not to debate but to              
 find out.                                                                     
                                                                               
 REPRESENTATIVE VEZEY responded he was trying to understand the                
 question, and cannot see the connection to precipitating a                    
 constitutional convention.  He sees it as asking the Congress to              
 initiate an amendment to the Constitution, a process that has been            
 done approximately 35 times.  It is not asking Congress to call a             
 constitutional convention.                                                    
                                                                               
 REPRESENTATIVE GREEN said he understood that.  He pointed out a               
 significant change in the makeup of the Congress and there is a               
 ground swell for several such activities.  He stated he is against            
 this resolution.                                                              
                                                                               
 Number 620                                                                    
                                                                               
 REPRESENTATIVE TOOHEY informed the committee that amendments do not           
 cause constitutional conventions, and she feels the committee needs           
 some background.  She spoke to Representative Finkelstein stating             
 she doesn't think this is minor and that frightens her.                       
                                                                               
 CHAIRMAN PORTER asked if there was further discussion.                        
                                                                               
 Number 630                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN said he didn't want to use the word                
 "minor," but there is a long history in this country and he didn't            
 know how many other cases had occurred, but if it has happened even           
 more than once, it's still a rare occurrence with all of the                  
 activities of the Supreme Court trying to enforce our Constitution.           
                                                                               
 CHAIRMAN PORTER asked for the wishes of the committee.                        
                                                                               
 REPRESENTATIVE BUNDE made a motion to move HJR 30 from the House              
 Judiciary Committee with individual recommendations.                          
                                                                               
 CHAIRMAN PORTER added with attached fiscal notes.  He said there is           
 a motion to move as described, and called for further discussion or           
 objections.  There was an objection.  Chairman Porter called for a            
 roll call vote.                                                               
                                                                               
 A role call vote was taken.  Representatives Vezey, Bunde, Toohey,            
 Green, and Porter voted to move the resolution.  Representatives              
 Davis and Finkelstein voted against moving the resolution.  HJR 30            
 was passed out of committee.                                                  
                                                                               

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