School Supt. Tries Budget Law Bypass

In a longshot attempt to break the impasse on the budget and keep payments for education flowing, the state schools chief announced Thursday that he would soon ask the courts to suspend California’s constitutional requirement that spending plans be approved by a two-thirds majority of the Legislature.

State Supt. for Public Instruction Jack O’Connell said he is preparing a lawsuit modeled after one that was victorious in Nevada last week, where the state Supreme Court suspended a similar constitutional requirement, allowing the Legislature to raise taxes with a simple majority.

Constitutional scholars say the odds are against O’Connell, as California’s Supreme Court would be loath to tinker with the Constitution unless it was a dire emergency. Republicans and taxpayer groups immediately denounced the effort as an attempt by extremist Democrats to make an end run around state law.

The case could become moot around the time state Department of Education attorneys file their petition next week, as Senate leaders are believed to be close to a budget compromise.

But O’Connell noted that the state has gone 17 days already without a budget. Until one is passed, nearly a quarter of the state’s payments to local schools -- about $629 million -- cannot legally be made. Underscoring O’Connell’s point that there is no end to the impasse in sight, lawmakers went home for the weekend on Thursday without making any apparent progress on a spending plan.

“These are moneys schools are anticipating, schools are owed and schools need,” he said. “[The Constitution] states public education should have priority. The Legislature has been unable to fulfill its obligation.”

O’Connell said he will argue in court that another state constitutional requirement, that money be applied to education, trumps the requirement for a super-majority to pass a budget. Democrats, who are pushing for approval of billions of dollars in new taxes to help close the state’s $38-billion budget hole, hold a commanding majority of both houses but need at least eight Republican votes to approve a budget.

Eugene Volokh, a professor of law at UCLA, said the California Supreme Court is “relatively conservative and less likely to do such stunning things” as the Nevada court did when it suspended part of that state’s Constitution.

“The Nevada decision flouts some fundamental principles of judicial decision making,” he said. “I cannot imagine the California Supreme Court reaching the same conclusion.”

Gov. Gray Davis told O’Connell in a letter that the lawsuit is “perfectly appropriate” and said that while he believed progress in budget negotiations is being made, he would join the suit if agreement is not reached soon.

State Treasurer Phil Angelides announced he also planned to join as a plaintiff in the lawsuit, which names the Assembly and Senate as defendants.

Republicans were dismissive of the tactic. Assembly Republican Leader Dave Cox (R-Fair Oaks) said O’Connell’s “time and effort would be best served by abandoning his grandstanding, and working with his fellow Democrats to abandon their extremist demand for new taxes and spending.”

Officials from the Howard Jarvis Taxpayers Assn. and the Pacific Legal Foundation announced they would fight such a lawsuit, and warned that any judges who rule to suspend the Constitution could trigger a campaign to remove them from the bench.