Metropolitan News-Enterprise


Wednesday, November 21, 2012


Page 3


State Supreme Court Declines to Hear Proposition 13 Challenge




The California Supreme Court yesterday declined to hear a challenge to the portion of Proposition 13 that requires a two-thirds majority vote in both houses of the Legislature in order to raise taxes.

The justices, at their weekly conference in San Francisco, unanimously denied review of the July 24 ruling of this district’s Court of Appeal, Div. Eight, in Young v. Schmidt, B230629. The high court usually confers on Wednesdays, but the conference is normally moved up to Tuesday during the week of Thanksgiving.

The plaintiff, Charles Young, sought a judgment declaring Sec. 3 of Proposition 13, which contains the two-thirds vote requirement, to be an unlawful revision of the Constitution.  Young argued that the two-thirds vote requirement was such a far-reaching change in California governance that it could not be placed on the ballot by voter petition, as Proposition 13 was in 1978, but only by a constitutional convention or by the Legislature.

Los Angeles Superior Court Judge Kenneth Freeman granted a motion for judgment on the pleadings brought by the Howard Jarvis Taxpayers Association, which intervened to defend Proposition 13. Freeman said the challenge was foreclosed by Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, which held that Proposition 13 was, in its entirety, a valid amendment to the Constitution and not a revision.

The plaintiff argued on appeal that Amador was not binding on the question of whether Sec. 3, taken in isolation, was a revision or an amendment, because arguments directed specifically at that section were not addressed in the opinion—unlike the remaining sections, which limited property taxes, established a method for calculating property values, and required two-thirds voter approval for special taxes levied within districts.

“Although sections 1, 2, and 4 were discussed in greater detail than section 3 to address the petitioners’ specific arguments, the court never limited its holding to those sections,” Justice Madeleine Flier wrote for the Court of Appeal. “The high court upheld the validity of the entire article, not of specific sections. “

In other conference action, the justices denied a request to depublish the opinion of Div. Eight Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641. The opinion was filed July 23 and certified for publication Aug. 15.

Depublication was unsuccessfully requested by Encino lawyer Steven J. Horn, who lost an arbitration of his fee dispute with attorney Frank Nemecek. The arbitrator, former U.S. District Judge George Schiavelli, ordered Horn to pay nearly $290,000 in fees for Nemecek’s services in a suit in which Horn accused former clients of owing him fees and the defendants cross-complained for malpractice.

After losing on his claim, and settling the defendants’ attorney fee claim for $250,000, Horn accused Nemecek of negligence, while Nemecek accused Horn of reneging on his obligation to pay Nemecek’s fees. After the arbitrator ruled for Nemecek, Horn sought to set aside the award on the ground that Schiavelli—who expressly found Horn to be lacking in credibility—had several conflicts of interest

None of the alleged conflicts—Schiavelli’s membership on a County Bar committee that also included a member of the Nemecek firm; his membership on the board of the Association of Business Trial Lawyers, which also included an expert witness who testified on behalf of Nemecek; his firm’s occasional involvement representing attorneys in malpractice actions; or the fact that lawyers from the Nemecek firm appeared before Schiavelli when he was a judge—were grounds for disqualification, the trial and appellate courts ruled. 


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