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May 18, 2011     Indian Valley Record
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May 18, 2011
 
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Bulletin, Progressive, Record, Reporter Wednesday, May 18, 2011 5B Wizen lack of i'..,.per standin00 becoJ.,., s justice denied R LEGAL MUSINGS STEVE BRENNEMAN steve@schoolpathways.com Arizona Revised Statutes section 43-1089 permits Ari- zona taxpayers to claim a tax credit of up to $500 for contri- butions made to a school tu- ition organization (STO). An STO is a charitable organiza- tion that provides scholar- ships to students attending private schools, including relb gious schools. A group of Arizona taxpay- ers filed suit in federal district court challenging section 43- 1089 as a,violation of the Es- tablishment Clause of the First Amendment, which gen- erally prohibits state sponsor- ship of religion. The plaintiffs alleged theax credit permits STOs "to ue State income-tax revenues tqpay tuition for students at]religious schools" that may "¢]iscriminate on the basis of religion in selecting students." The plaintiffs' theory goes something like this. A tax credit, unlike a tax deduction, is a one-for-one reduction in taxes due. The plaintiffs ar- guedthat if an Arizona tax- payer pays $500 to an STO and receives a $500 tax credit in re- turn, it is tantamount to the taxpayer taking $500 of his or her tax obligation and paying it instead to the STO. Accord- ing to the plaintiffs, this is the same as if the government had collected the $500 from the tax- payer and paid it to the STO it- self. Thus, the government is supporting the STO, which in turn is supporting religious schools. The district court dismissed the case, concluding the plain- tiffs failed to state a valid Es- tablishment Clause claim• However, the 9th Circuit con- cluded otherwise and re- versed. The United States Supreme Court granted review and re- versed the 9th Circuit. Howev- er, the high court did not reach the merits of whether the plaintiffs stated a valid claim• Rather, the court concluded the plaintiffs have no standing to assert their claim. Standing?. This is legal- speak for the plaintiffs are not the proper parties to challenge section 43-1089 in court. Standing is concerned with whether the party bring- ing an action has a sufficient interest in the outcome. Courts do not deal in abstract legal questions. They decide actual controversies between parties with adverse interests. If my neighbor plays loud rock music all the time that bugs the crap out of everyone in the neighborhood but me, because I happen to like loud rock music, I have no standing to sue for a nuisance on behalf of the others. They must do so themselves. Nor would I have standing to challenge a local ordinance that discriminates against women. One might reasonably think a taxpayer would have stand- ing to challenge a law that per- mits other taxpayers to pay less tax. If one taxpayer were permitted to pay less tax, an- other taxpayer would be re- quired to pay more. At least that's the theory. But the federal courts generally don't buy it. Taxpay- er status alone is not enough. There are exceptions. In Flast v. Cohen, the Supreme Court permitted taxpayer standing where the plaintiffs alleged a federal law permit- ting government to make di- rect payments to religious schools violated the Establish- ment Clause. In the Arizona tax case, a majority of five justices of the Supreme Court concluded the plaintiffs did not have stand- ing. Three concluded the Flast v. Cohen exception does not apply because ttie case does not involve government pay- ments but tax credits. Two concluded the Flast v. Cohen exception should never have been created in the first place. Four dissenting justices con- cluded the exception does ap- ply because granting a tax credit is the same as making a payment. Although it is not really the point of this discussion, the devil perched on my left shoul- der insists that I not move on without a brief comment about the dissenting opinion. The basic premise of that opinion is that a tax credit is Veterans' state funding has been slashed V: M :':::8:'i  .... .T TRAx KE McLEOD Division Dir ctor, Veterans Services Last year, before the former governor left office, he ap- proved an increase of $11 mil- lion in state funding for county veterans services officers• Sad- ly, the new governor's adminis- • tration slashed the funding and the budget was restored to the historic level of $2.6 million. The California Department of Veterans Affairs and county veterans service officers (VSOs) haveunanimously agreed that this is unaccept- able and are collaborating to restore the funding at the high- er level. Last week my director, Mimi Hall, submitted an item before the Plumas County Board of Supervisors seeking approval for a co-author request in sup- port of Assembly Bill 1209. It was approved and I forwarded the document to the California Association of County Veteran Service Officers' legislative representative in Sacramento. Here is the latest news: AB 1209, authored by Assem- blyman Paul Cook (R-Yucaipa), passed its first legislative hur- dle April 26 by a vote of S-0 in the Assembly Committee on Veterans Affairs. AB 1209 is sponsored by the California Association of County Veteran Service Offi- cers and is the association's primary legislative effort for 2011. AB 1209 seeks to restore the funding for CVSO local as- sistance (subvention), state grants to counties for veterans outreach programs, grants for VSOs and Cal-Vet Connect/ Operation Welcome Home. Our servicemen and -women deserve better for their efforts and commitment and more needs to be done to improve services in our communities especially the rural ones where 39 percent of veterans reside. Restoring the funding ap- proved by former Gov. Schwarzenegger will allow for improved services and pro- grams. ..... ;:, .j:::_ SCOTT TANNER BUSINESS EQUIPMENT Sales • Service ° Supplies ° Two Local Technicians • Copiers & Fax Machines ° Laser Printers • New or Remanufactured SI-IAgRR FROM SHARP MINDS COME SHARP PRODUCTS TM ,. (888) 447-2679 • (530) 284-1112 Fax: (530) 284-1102 • 101 Pine St•, Greenville Serving Plumas, Lassen, Sierra & Modoc Counties THAN K YOU ! to all our loyal clients and friends!  After 29 years of great fun, at Feather Travel Service has closed the doors. Special thanks to Barbara for 24 wonderful years of laughs and friendship. It was a great adventure! 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Quincy Store 2019 East Main St., Quincy 283-2929 Tues-Fri 9:30am-5:30pm Sat lOam-4pm Closed Sun &Mon 2011 APA-W. pA World Powerl,!t,ng Champ,onsh,ps Saturday May21, 7011 Portola, Cahf0rnia i Opening Ceremonies at 9:00am Lifting starts at 9:15am .Admission - S5 person • H3/family up to 5 Competitors are allowed 1 trainercoach free admission Hosted by Healthy Bodies Fitness • . I www.healthybo&esfitness.com 530-513-3336 host Hotel is Chalet View Lodge 72172 Hwy. 70, Portola (Maybe) the same thing as a tax pay- ment. In other words, whether the government allows the taxpayer a tax credit of $1,000 or gives the taxpayer $1,000 in benefits, the result is the same. The taxpayer is $1,000 richer. In other words, any money you earn belongs to the government. The government can either let you keep some of it by way of a tax credit or give some of it to you in the form of free health care or the like. Returning to the point of this discussion, by finding no taxpayer standing in the Ari- zona case, the Supreme Court has created a situation where- by it is unlikely the law will ever be challenged. I.fa person who objects to a law that grants tax credits benefiting religious schools does not have standing to chal- lenge the law as a violation of the Establishment Clause, who does? The significance Of the fore: going should not be lost on those who have been following the challenge to Proposition 8 (the anti-gay marriage law). As most of you know, a fed- eral district court in San Fran- cisco struck down Proposition 8 as a violation of equal pro- tection. The case is currently on appeal to the 9th Circuit• An interesting fact, not widely known outside legal circles, is that the state attor- ney general refused to defend the law in court or pursue the appeal. In effect, the state's attorney, whose job it is to represent the state in legal proceedings, refused to defend a law that was passed by a ma- jority of the citizens of the state. The proponents of Proposi- tion 8 are pursuing the appeal instead. However, there is a very good chance the 9th Cir- cuit will conclude those par- ties do not have Standing to pursue the appeal. The propo- nents must show they are • harmed by the ruling over- turning the law. However, the district court judge concluded straights are not harmed when gays are permiRed to marry. There is every reason to be- lieve the 9th circuit will con- clude likewise. I'm not here to defend Proposition 8. However, it should get its day in court. If the proponents are ulti- mately found not to have stand- ing, the state attorney general will have been able to veto a popularly enacted law simply by refusing to defend it. There is something fundamentally wrong with this picture. 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