Judicial Taxation Violates Separation of Powers

Published December 1, 2000

The legislature makes the laws. The executive enforces the laws. The judiciary rules on the laws.
Civics 101

When judges order the levying of taxes, they violate the separation of powers, undermine the democratic process, and subvert the legal system, according to Rockford attorney Michael F. O’Brien.

While it may be perfectly appropriate for a judge to make a legal determination about how a fiscal pie should be divided, O’Brien contends judges have no business making political decisions about how large that fiscal pie should be.

O’Brien explains that in situations where taxing units have limited levy powers, as Illinois school districts do, court-ordered taxation circumvents the electorate by ordering more spending than voters have expressly approved through various referenda. This produces an incentive for the government entity to agree to a guilty verdict–as the Rockford School District did–because “a guilty verdict ensures the judge will increase the governmental unit’s operating revenues and budgets.”

In this way, “private litigants can circumvent the democratic process and transfer basic fiscal power and control away from our elected representatives and into our courts,” warns O’Brien.

In his dissent an earlier case, Seattle School District No. 1 v. State (Washington, 1978), Justice Rosselini explained the problem with the courts deciding public policy issues.

“If legislators pass laws that people do not agree with, the people can write and call their representatives, or make their dissatisfaction known at the next election. This open and robust debate is an essential part of the political process in a representative democracy.

“The court, however, is not so easy to reach, nor is it so easy to persuade that its judgement ought to be revised,” wrote Rosselini. “A legislature may be a hard horse to harness, but it is not quite the stubborn mule that a court can be.”

Heather MacDonald explains the motivations behind court-ordered public policy solutions in a recent City Journal article titled “What Good is Pro Bono?” Using New York City’s “unique, and uniquely tortured, court-ordered homeless system” as an example, she describes how single-minded lawyers and activist judges are creating a new kind of law outside the political process.

The homeless system took shape, she recounts, when Robert Hayes, an associate with the firm Sullivan & Cromwell, filed a massive pro bono lawsuit claiming the city had a constitutional duty to provide shelter on demand for the homeless. To settle the suit, the city eventually agreed to terms that included court oversight of its every move regarding the homeless. “It has never been free of homeless litigation since,” notes MacDonald. She continues:

“I asked Robert Hayes why he didn’t take his case for shelter on demand to the legislature, where it belongs. ‘Personally, I don’t like politics,’ he replied forthrightly. ‘It’s really hard.’

“Here, in just eight words, is the trouble with class-action and other litigation that seeks to create new rights–the very heart of contemporary pro bono publico work. Hayes is right: persuading a legislature to commit the billions that New York City has been forced to spend in irrational ways on the homeless would be a whole lot harder than persuading one judge to order those billions spent. The legislature has to balance competing demands for taxpayer dollars; a judge can order an elaborate shelter and housing system without having to trade off dollars for teachers, say, versus dollars for private apartments for drug addicts with AIDS. Big political litigation allows elite lawyers to make an end run around the political process.

“And, in doing so, they make others pay for their vision of the world, notes Francis Menton Jr., a partner at Willkie Farr & Gallagher. . . . ‘Millionaire attorneys have decided how society should work,’ he says, ‘and they use the courts to make the middle class pay for their schemes.'”

The Illinois Supreme Court acknowledged the problems with this activist approach in Committee for Educational Rights v. Edgar (1996), where Justice Nickels wrote for the majority:

“To hold that the question of educational quality is subject to judicial determination would largely deprive the members of the general public of a voice in a matter which is close to the hearts of all individuals in Illinois. Judicial determination of the type of education children should receive and how it can best be provided would depend on the opinions of whatever expert witnesses the litigants might call to testify and whatever other evidence they might choose to present. Members of the general public, however, would be obliged to listen in respectful silence.”

George A. Clowes is managing editor of School Reform News.