Wednesday, July 06, 2011

The Equal Protection in Pennsylvania is a Joke Act of 2011

What do you do if you really don't want a fair tax system?  Call Harrisburg I guess.  If you have been following the property assessment developments including the governor's signing (update: I was told all indicators in Harrisburg were that the Gov was going to sign the bill, but the truth is that he vetoed the whole thing on Friday... go figure, but why the change of heart??)  of a new law that halts a planned property reassessment in Washington County.  The thing is that there is this concept of equal protection in the Pennsylvania Constitution.  The idea being that the legislature can't pass laws that apply to any one entity. Yet, here is a law that clearly only applies to one of Pennsylvania's 67 counties. 

So to get around that, read the legislative verbiage that was ammended to the bill that was signed yesterday.  The ammendment you can see in it appears entirely intended to cut out Allegheny County from its provisions, yet to keep Washington County, and only Washington County, in its crosshairs.  This is the new  relevant clause as it applies to where it applies:

If that really passes legal muster, then the whole idea of equal protection in the Pennsylvania Constitution is a joke.  In Pennsylvania they clearly can't write it to say "Washington County" or else it would be summarily deemed illegal, but they can write a law that applies only to one county at one point in time. Isn't there some reasonable person test for legalisms?  Law school would make my head spin.  I've been told the first task in law school is to deprogram the kids from trying to think logically.  You can see why.

It would have been poetic if they got the numbers wrong, but the 2010 population of Washington County is 207,820 so they are ok there. What was the point of specifying a range so wide?  Why 185K for the lower bound?  Why not 200K?  Why not 207,819?  Maybe we can count half-people and avoid all the fake ambiguity and declare the law only appllicable to counties with populations between 207,819.5 and 207,820.5. Works out the same in the end.

However there are points in there for brevity and directness.  The whole bill is three pages long. I guess it passes the Herman Cain test.  Seriously though, maybe it makes sense to have laws like this. But if we are going to do so can we get beyond the fiction that we have to have the equal protection in the first place.  At least we could be consistent.


Anonymous n'at said...

How is this any different than laws specific to "Cities of the First Class", "Cities of the Second Class" or "Cities of the Second Class A" for that matter? When it's well established that we're saying Philly, Pittsburgh and Scranton, respectively.

Wednesday, July 06, 2011 8:45:00 AM  
Blogger C. Briem said...

Differing only in degrees of denial.

Wednesday, July 06, 2011 8:48:00 AM  
Anonymous MH said...

The classes of cities make some sense because Philly and Pittsburgh (for a few more years) are really outliers in terms of the population distribution.

Wednesday, July 06, 2011 9:11:00 AM  
Anonymous MH said...

As for the specific range, Lackawanna County has 214K people and Butler has 184K. I suppose they decided splitting in gradiations of 5K or more looked better.

Wednesday, July 06, 2011 9:44:00 AM  
Anonymous BrianTH said...

It is all highly questionable, but I agree it does look a little worse to separate out a single county in the middle of the distribution, rather than carve out a couple one-city classifications at the top of the distribution.

Wednesday, July 06, 2011 11:36:00 AM  
Anonymous The Wiz said...

How can the legislative branch pass a law denying a court order by the judicial branch? This another example of why we should adapt the Senate to one rep from each of the 67 counties. Too much power granted to too few hands.

Wednesday, July 06, 2011 4:47:00 PM  
Blogger C. Briem said...

One rep from each county?? That would survive about a nanosecond in federal court. That whole one-person one vote thing might get in the way, but sure would make the folks in Forest County happy. Each one of them would be worth 150 folks from Allegheny County.

Wednesday, July 06, 2011 4:51:00 PM  
Anonymous MH said...

They should just dump the PA senate and go unicameral. So much cheaper and no less representative.

Wednesday, July 06, 2011 4:56:00 PM  
Anonymous MH said...

Or dump the PA house and go unicameral. Even cheaper, not that much less representative.

Wednesday, July 06, 2011 4:58:00 PM  
Anonymous The Wiz said...

Yeah, I threw that in since we had a major brouhaha about that very subject a while back.

But no one addressed the issue of the legislature passing a law directly to countermand a judicial order. Is that legal?

Wednesday, July 06, 2011 9:54:00 PM  
Anonymous MH said...

It might be legal, if the judicial order was based on a state law and not the constitution of PA or the U.S.

(I'm not a lawyer, but I did once serve on a jury for a mock trial at a law school.)

Wednesday, July 06, 2011 10:11:00 PM  
Anonymous The Wiz said...

I'm not a lawyer either but I once served on a real jury and was even Jury Foreman so, by the powers invested in me, I think it isn't legal if the judge based the order on existing law. The only way to cancel the court order would be to change the law on which it was based, not on some cockamamie magic trick like this.

And for the sake of argument, when I succeed in forming Westslyvania and have a bicameral legislature with one Senator for each county, it will be legal on two counts. One, each Senator will be representing the county, not the people. Thus that will negate any one-person-one-vote argument. Two, under the Tenth Amendment the Imperial Federal Government does not have the right to interfere in the internal politics of a state.

Wednesday, July 06, 2011 10:44:00 PM  
Anonymous MH said...

Have fun storming the castle. Baker v. Carr (and some following cases) put a stop to that in the 60s.

The Tenth Amendment doesn't say the feds can't interfere in the internal politics of a state. It says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The 14th Amendment focuses on the "or to the people" part and says people get equal protection of the laws and that Congress can enforce that. This was taken to mean roughly equal representation in state legislatures.

To my knowledge, there is no organized group or prominent person arguing otherwise.

Wednesday, July 06, 2011 11:01:00 PM  
Anonymous BrianTH said...

The most directly on point case is Reynolds v. Sims, in which the Supreme Court specifically held that sort of plan envisioned by The Wiz is unconstitutional. Basically, it held that disproportionate representation in state legislatures was a form of unjustifiable voter discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. It also noted this meant the Supremacy Clause of Article VI trumped any state constitutions or laws to the contrary.

As to the argument this holding can be circumvented by claiming the officials in question represent land units and not people, writing for the Court, Chief Justice Warren noted:

"Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system."

I might note this implicitly evokes not just the 14th Amendment, but Article IV, Section 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government"). In other words, a state trying to insist its legislators represented land units and not people would be failing to provide its people with a republican form of government, and once it is established that the legislators must be representatives of people and not land units, the Fourteenth Amendment requires that every voter have equal representation.

And that's that, unless you think you can persuade the Supreme Court otherwise.

Thursday, July 07, 2011 11:33:00 AM  
Anonymous MH said...

Legislators represent people, not trees or acres.

The Lorax speaks for the trees.

Thursday, July 07, 2011 11:39:00 AM  
Anonymous BrianTH said...

As a followup, here is the Supreme Court defining what "republican form" means, from In re Duncan (1891):

"By the Constitution, a republican form of government is guaranteed to every state in the union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves."

So again, attempting to circumvent the 14th Amendment by having legislators represent land units and not people runs afoul of the guarantee of a republican form of government.

Thursday, July 07, 2011 11:41:00 AM  
Anonymous BrianTH said...

Interestingly, the Lorax might have standing to sue for the trees. He just can't represent them in a legislature.

Thursday, July 07, 2011 11:47:00 AM  
Anonymous The Wiz said...

Hows this for a gambit; I'll have the Senators of Westsylvania appointed by the commissioners of each county. Therefore they will not be elected by the people, thus negating that pesky one-person-one-vote stuff. Sorta like the original Constitution which had US Senators appointed by the states, usually by the governors but sometimes by the state legislature.

And its amazing that the state cannot set up a system identical to the federal government as US Senators represent the states and are limited to two per state....not exactly one-person-one-vote.

Again all this putting this fun aside; can a state legislature negate a court order without changing the law on which it is based?

Thursday, July 07, 2011 3:26:00 PM  
Anonymous MH said...

its amazing that the state cannot set up a system identical to the federal government as US Senators represent the states and are limited to two per state

I encounter many, many more people upset at the composition of the Senate than upset that a state cannot copy it. The difference is of course that the Senate is explicitly in the Constitution.

can a state legislature negate a court order without changing the law on which it is based?

Doesn't any new law automatically change any old law that it conflicts with?

Thursday, July 07, 2011 4:23:00 PM  
Anonymous BrianTH said...

For that to be a republican form of government, the county commissioners have to be elected by the people. And after that, the federal courts won't be fooled by your attempt to obscure the effects with a two-step process. Indeed, also from Warren's opinion for the Court in Reynolds v. Sims:

"Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable. One must be ever aware that the Constitution forbids sophisticated, as well as simple-minded, modes of discrimination."

In other words, the federal courts under existing doctrine aren't going to let you give people living in rural areas more political weight than people living in urban areas, no matter how clever you try to get about it, because it is that discrimination itself they are forbidding, not some particular means of achieving it.

I might note Warren's opinion also discussed the federal Senate and Electoral College at some length. In a nutshell, it has long been recognized that was a one-time deal that allegedly was required for ratification of the Constitution, and it thus has no particular implications for how to interpret other constitutional provisions not directly subject to that deal.

Finally, legislatures can often negate court orders based on prior legislation by either "repealing" the prior legislation (expressly or by implication) or "clarifying" the prior legislation in a way which the courts find compelling. There are some limits to when and how they can do that, but more relevantly in this case, the holding was based on the state constitution, not a state law.

Thursday, July 07, 2011 4:47:00 PM  
Anonymous MH said...

The governor vetoed the bill mentioned in the post. It was just too stupid, even for the PA legislature.

Friday, July 08, 2011 3:55:00 PM  

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