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When laws, justice don't coincide

By MARTIN DYCKMAN
Published September 25, 2005

The controversy over a new chief justice is in large part about the public wanting more from the Supreme Court than it has the power to give. The people expect justice - every time. But the court's first duty is to the law. The two ideals do not necessarily coincide.

Most people saw it as injustice when the court allowed a city to snatch people's homes simply to milk them for higher taxes from commercial use. And so it was.

But to a slim majority of the court, the law - that is, the Constitution - leaves it to elected officials rather than judges to decide what's best for their city. Absent any sign of discrimination on the basis of race, religion or sex, a mere "rational basis" suffices to win the case.

The court applied the same easygoing standard in a 1992 decision that spells injustice to a multitude of Floridians when they receive their property tax bills each fall. That case, Nordlinger vs. Hahn, upheld the "welcome stranger" wrinkle of California's Proposition 13, an initiative that limits assessment increases on owner-occupied homes to 2 percent a year.

As it requires reassessment at full value when the home is sold, inequities pile up swiftly in a superheated real estate market such as California's or Florida's. Stephanie Nordlinger was paying five times as much tax on her modest home as neighbors longer-settled in houses just like hers. The record showed other disparities as great as 17 to 1.

The court conceded the injustice but upheld the law, 8 to 1. Justice Harry Blackmun's majority opinion rationalized that the state "has a legitimate interest in local neighborhood preservation, continuity and stability." Further, the state "legitimately can conclude" that a prospective new owner does not need equal protection against taxes because he doesn't have to buy the house.

No such proof was part of the electoral record from the Jarvis-Gann tax revolt, but no matter; to the court, it was enough that it could have been.

Blackmun was a great American but that wasn't his greatest day. Only four years before, the court had tossed a West Virginia tax assessor's policy of revaluing property only when it was sold. On that occasion, a unanimous court said this violated the rights of some coal companies to the equal protection guaranteed by the 14th Amendment.

Only two of the Nordlinger justices could not reconcile the inconsistency and only one dissented.

Justice John Paul Stevens objected that California's scheme was no more rational "than a blanket tax exemption for all taxpayers named Smith would be a rational means to protect a particular taxpayer named Smith who demonstrated difficulty paying her tax bill."

Less than five months later, Florida voters narrowly approved the "Save Our Homes" initiative, an act of selfishness closely resembling California's, which would have been toast had Nordlinger won her case. Florida's limits annual increases to the inflation rate or 3 percent, whichever is less, until the home is sold.

The cumulative effects: Some $221-billion in underassessment, with a shift of some $4.4-billion in potential tax liability to unprotected property. The losers are not just new homeowners but also renters, who never get a break, and the owners of commercial and undeveloped real estate.

"Save Our Homes" makes a mockery of Florida's TRIM law - for Truth in Millage - which was designed to goad cities, counties and school boards into reducing their tax rates to offset assessment increases.

Florida TaxWatch put out a news release recently to embarrass local governments that don't want to trim. It stated what ought to be the obvious fact that a higher tax bill resulting from a higher assessment is a tax increase even if the millage rate is not raised. This has been less than obvious, however, to the governor and Legislature, who have taken frequent advantage of higher assessments to make school boards tax more so that the state can claim to tax less. TRIM does not apply to the Capitol. But because of "Save Our Homes," even an honest effort to comply with TRIM will still result in hidden tax increases to property owners whose assessments went up at a higher rate than the aggregate tax roll.

Might the Supreme Court ever redress this injustice? As chief justice nominee John G. Roberts Jr. acknowledged to the Senate Judiciary Committee, a settled precedent can be discarded if it is shown to be unworkable.

Save Our Homes, like Proposition 13, is demonstrably unfair. But is it unworkable?

Martin Dyckman's e-mail address is madyckman@verizon.net

[Last modified September 24, 2005, 00:22:02]