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Calif. AG tells GOP she won't question state budget

By Jessica M. Karmasek | Sep 12, 2011


SACRAMENTO, Calif. (Legal Newsline) - California Attorney General Kamala Harris, in a letter last week, declined a request for an opinion by Republican lawmakers questioning whether the state's budget is constitutional.

Assembly Republicans sent a letter to Harris on Aug. 3, asking her office to issue a legal ruling on whether provisions in the budget, enacted in June to shield sales tax dollars for other purposes, "illegally shortchanged" funding for public education required by Proposition 98.

"Paying for our children's education should be the state's top priority. Unfortunately the final budget package restored welfare grants for welfare recipients who have been on welfare for five, 10 or even more than 15 years while cutting school funding below the constitutional guarantee," Assembly Republican Caucus Chair Brian Nestande, of Palm Desert, said in a statement.

Specifically, Assembly Republicans asked Harris for an opinion on two key provisions related to the education funding provisions of the budget plan signed into law by Gov. Jerry Brown, the state's former attorney general:

- Whether the Legislature violated the Constitution in excluding a portion of state sales tax revenue from the calculation of the Proposition 98 funding guarantee for public schools; and

- Whether the Legislature can legally approve a budget plan that shortchanges the Proposition 98 funding guarantee by $2.1 billion as a result of this scheme.

The budget plan diverts 1.06 percent of General Fund sales tax dollars to fund local programs and states that these dollars should not be used to calculate the Proposition 98 guarantee.

Republicans argue that this is, in effect, Democrats suspending the constitutional funding guarantee without the required two-thirds vote of the Legislature, and passing a budget that shortchanges the funding guarantee by $2.1 billion in violation of Proposition 98.

Harris' opinion, they said, would help clarify whether the Legislature can divert these dollars and suspend the Proposition 98 guarantee on a majority vote.

"Assembly Republicans made it clear that we would not vote for any budget plan that suspended the Proposition 98 educational funding guarantee," Assembly Budget Committee Vice Chair Jim Nielsen, R-Gerber, said in a statement.

"Thwarted in their efforts to raise taxes, it appears that Democrats used budget trickery to circumvent the will of the people in shortchanging our schools. It is essential that Attorney General Harris weigh in on this important question as to whether Democrats violated the Constitution in their reckless budget plan."

Assemblyman Brian Jones, R-Santee, agreed.

"Californians have made it clear to the Legislature that providing a good quality education for our kids should always be a top budget priority," Jones said in a statement. "That's why they passed Proposition 98, to guarantee in the state Constitution that our schools should have the adequate funding they need every year to prepare our kids for a bright future.

"It is disappointing that Democrats may have gone around the Constitution to take money that should have gone to our schools to fund lesser priorities."

Susan Duncan Lee, the supervising deputy attorney general, wrote in response Tuesday that "given the budget challenges facing the state," the education funding measures in the current budget package are "highly likely" to end up in litigation.

If that happens, Lee said the Attorney General's Office will be bound to represent all the likely defendants, including Brown, the Department of Finance and the State Controller's Office.

In addition, she said the office is currently representing those defendants in two different pending cases challenging public funding for education.

"Under these circumstances, we believe that we have a duty to decline your request in order to avoid direct or indirect conflicts with representation of our clients on education funding matters," Lee wrote in the one-page letter.

From Legal Newsline: Reach Jessica Karmasek by email at

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