Legislature(1995 - 1996)
04/12/1995 01:17 PM House JUD
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* first hearing in first committee of referral
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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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