The Oklahoma Supreme Court issued a 'slam dunk' unanimous ruling in figurative 'sound barrier speed', on Thursday. they struck down a shameless money-grab which tried to cloak itself as a state-run smoking cessation program. The newest and most controversial justice on the court, Patrick Wyrick, wrote a brilliant, plain-spoken, and thoroughly-reasoned opinion. Two justices partially dissented, but they did not elaborate. Wyrick wrote a masterpiece of both form and substance.
The remaining cases will not be so simple to prevail upon.
The matter of removing exemptions to a tax, is essentially the same as a bill to establish a new, yet narrower tax. But the comments and questions of the 9 justices give us a hint that they do not have a common mindset on the matter.
Justice Gurich claims that the founders of our state had a disdain for exemptions. She says that tax burdens should be broadly and equitably applied to all. At least that's what she gratuitously asserts as being the heart and soul of the framers of Oklahoma's constitution. She asserts that carve-outs and narrow exemptions are a form of pandering and abuse of the whole, to give a gift of money to a select demographic.
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Wyrick came up with his own analogy to refute the argument of eliminating exclusions when he challenged the state's oral arguments, about 27 minutes into the session. I will paraphrase.
"If a new tax proposal is so controversial that a legislative body cannot attain 75% support, they may seek to overcome the resistance of several members by explicitly exempting a subject significant concern. If that explicit exemption convinces enough members so that the 75% support is obtained and the bill become law; then the same legislative body can turn right around and remove that exemption immediately with a mere 50% threshold. So that there is no longer a 75% support for the tax in the first place."
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.