Rebel With a Cause

Paul Goldman

Kilgore's Turn

Did the politicians in Richmond redo the Gregorian Calendar? If not, then the tax bill violates the VA Constitution and the budget is not in balance. 

Attorney General Jerry Kilgore may need some help from Judge Judy, Judge Brown, Jerry Springer, Dr. Ruth, Dr. Phil, or he can just try to communicate with Pope Gregory XIII. Every 20 years or so - 1966, 1986, 2004 - the politicians in Richmond have gotten around to raising the sales tax, the levy now scheduled to go to 5 percent on August 1, 2004. But not since 1752 have we here in the former English colonies decided to throw out the basic Gregorian Calendar, and perhaps go back to the Romans. Of course, this being a taxing issue, it might make sense to do it the Roman way, as after all, we now are giving to Caesar what is Caesar's, leaving less for God. 

Indeed, as Barnie Day has pointed out, our politicians in Richmond do feel they are the embodiment of "courage," a term best put in quotes as Mr. Day has pointed out.

So, while a 20-year itch is much ado about nothing, settling a 252-year score with the British is big news.

No wonder Prime Minister Tony Blair is turning against the War in Iraq -- his folks are still very sensitive about their history and our hand in it. Indeed, when the General Assembly returns to Richmond in June to deal with the apparent constitutional flaw in the tax bill -- more on that below -- it will be almost 252 years to the day when Benjamin Franklin did his now famous kite experiment. This was also the year when the Dutch forbade the export of windmills, wisely leaving it to politicians and commentators to supply the wind on a calm day. Moscow was set afire, and the first fire insurance policy in the United States was issued.

We have at least all read the calendar, my preference being the swim suit edition, not the Farmer's Almanac. However, seeing the same months and days every year, no change, no variety, is, as they say, boooooooring.

So maybe the General Assembly was right to change the Calendar.

Did they? If so,  it seems cruel to make us learn about such an historic change when we start paying higher taxes

We will find out, but it will take reading the Virginia Constitution to know for sure. 

Admittedly, few Virginians have had occasion to read our state Constitution lately. This includes, apparently, the governor's lawyers, the legal eagles at the General Assembly, the high-priced lawyers and political appointees of the Attorney General, all but Del. Bob Marshall among our state legislators and possibly Mr. Warner, Mr. Kaine and Mr. Kilgore himself along with the state's press corps and editorial boards.

They get paid to read such things: average folks like you and I do not. This is especially true of Mr. Kilgore, who says he is the state's top lawyer.

The constitutional language at issue appears in Article IV, Section 13, reading as follows:

...all laws enacted at a special session... shall take effect on the first day of the fourth month following the month of adjournment of the special session; unless in the case of an emergency (which emergency shall be expressed in the body of the bill) the General Assembly shall specify an earlier date by a vote of four-fifths of the members voting in each house... [Emphasis added].

Granted, this part of our Constitution was enacted the "California" way, as Virginians voted it into law by direct referendum. The fear of somehow turning Virginia into California - exchanging our 13 electoral votes for their 55 seems like a good deal to me - does seem to bug a lot of the politicians in Richmond, and may explain their reluctance to read the words endorsed by the people they get paid to represent. 

However, I don't take the California bashing very seriously. For the record, referenda have long been considered a great reform in American politics, aimed at giving power to the average people against the undue influence of concentrations of great wealth, the railroads specifically in terms of California Gov. Hiram Johnson's legislation. The last time a native Virginian was elected President, the Democratic Party endorsed popular referenda in our platform. 

But today, what passes for the Virginia intelligentsia is against them, as was Senator Harry Byrd and his machine, afraid giving Virginians such a right - God forbid -- that might allow people to end segregation, give African-Americans and women the right to vote, and other such dangerous notions. I used a variant of this right last year to give the people of Richmond - admittedly, I was called a racist -- the right to elect their own Mayor. 

Still, reasonable men and women can disagree on the value of referenda, so that is a subject for another day.

However, what we do need to decide today is whether the General Assembly did more than pass a record tax increase: Did they create a new month between July and August?

The reason for such an inquiry is self-evident as will now be explained. As indicated above, the effective date of the sales and cigarette tax increases, among other things, is the "fourth month following the month" the Special Session of the General Assembly finally adjourned. This happened earlier this month of May. Thus, new taxes are constitutionally prohibited from taking effect before September 1, 2004 unless the emergency provisions of Section 13 were met.

Unfortunately, the tax bill passed by the General Assembly makes them effective August 1, 2004. Since the emergency provisions were not met, the August 1, 2004 date is prohibited. Should the state try to impose, for example, the higher sales tax on that date, the Retail Merchant's Association, an ad hoc group of vendors, a single vendor, a group of customers or perhaps single customer, could bring suit to block the higher tax rate. The Virginia Supreme Court is not a big fan of such taxpayer suits as demonstrated in the case of Goldman vs Lansidle. But the justices did allow a trucking association to bring a suit challenging some statewide regulations and they would almost surely have to allow someone or some group to question an illegal tax. 

Any other result would hold the judicial system up to ridicule. 

Accordingly, the state budget passed by the General Assembly allocates revenues in a manner not permitted by law, meaning the state budget has an outlawed deficit. 

In practical terms, the state budget allocates roughly one extra month of revenues from certain new or expanded net revenue sources. Subtracting this amount will those cause the current budget to be out of balance by normal accounting standards. 

Accordingly, the Governor either has to get the General Assembly to restore this revenue by enacting an emergency clause to the tax bill, or cut certain line items in the budget to balance state spending at a lower level.

Unless some legislators in the House of Delegates have had a change of heart, it seems doubtful there would be sufficient numbers of lawmakers willing to allow an emergency clause to be enacted.

Accordingly, as originally suggested by Delegate Bob Marshall, it would seem the August 1, 2004 effective date for any such new or expanded revenue measures may be in serious doubt.

Unless, of course, the General Assembly and the Governor are about to announce a change in the Gregorian Calendar. 

-- May 24, 2004