But her argument is rebutted by the very facts of the Auto tax. Oklahoma has two classes of taxation on commerce. The sales tax is more commonly understood. We see it applied to us every day. Excise tax is only on specific goods. Whereas sales tax applies to just about everything you buy (usually with specific exceptions such as unprepared food and clothing), excise taxes are applied to specific goods. If an item or service is subjected to a sales tax, it generally is not hit with an excise tax. Gasoline sales are a prime example. While the state collects 4.5% sales tax on most other items, Oklahoma charges a flat 17¢ on each gallon of gasoline. That's nearly double the sales tax when the fuel sells for $2 per gallon. So if the state eliminates the sales tax exclusion on fuels, they are effectively singling out motor fuels for punitive taxation to an even greater degree.
The Leverage case was extensively cited in the oral arguments. That is when an unintended exemption arises out of unintended 'loop holes'. In that situation, a legislature is not changing the intention of the tax code. It is merely being more clear and explicit about the original intention. Chief Justice Combs & Justice Kauger seem to also support this narrower intention of the Leverage case.
Intention Is everything
The intent and impact of Article 5 Section 33, as amended in 1992 by the revolt of the voters, is to prevent the state from extracting more money from the people, unless certain support is attained. Either 75% of the legislature or 50% of the people. It matters not what justification is cited. even equalization and 'fairness' does not exempt the legislature from the constitutional requirements. Gurich's comments seem to indicate that her prevailing concern is whether a change in tax code is "more fair". She sees 'fairness' as a superior issue to constitutional process. To Gurich's expression, the bill is constitutional because it's 'fair'. It's fair because it elevates excise taxes to the same rate as sales taxes. The Gurich line of questioning should bother any constitutionalist, because it suggests that she is willing to assert legislative powers from her bench.
Justice Reif offered up his understanding of the legislative powers of granting exemptions as a "legislative Grace" power. He sees that power as superseding the mandates of Article Five of the constitution. But Reif's analogy is only that. An idea of his own to justify his outcomes. If the court does not hold this legislative action to the clear language of the constitution, then we effectively have discarded this portion of the constitution by fiat of the court. It will further erode the peoples' confidence in and submission to our current power structure.
Opinion of the Editor
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David Van Risseghem is the Director of Sooner Politics.org. The resource is committed to informing & mobilizing conservative Oklahomans for civic reform. This endeavor seeks to utilize the efforts of all cooperative facets of the Conservative movement...