🚀 go-pugleaf

In article <7trjli$ih3$1@agate-ether.berkeley.edu>,
Jeff Bishop <jwbishop@OCF.Berkeley.EDU> wrote:
>In article <7tober$ju9$1@ultra.sonic.net>,
>David Hatunen <hatunen@bolt.sonic.net> wrote:
>
>>We don't really know that yet; there's a whole fedearl judicairy to
>>go through here.
>
>Huh?  The only part of the federal judiciary which could
>conceivably rule on it is the U.S. Supreme Court, and the only way
>they would consider it would be if (1) the DMV appeals the case at
>all, which they may or may not do, and (2) the California Supreme
>Court reverses as to the state constitutional challenge.  Even
>then, the smart money says they'll deny certiorari.

I'e already mentioned that none of the accounts I read were clear
on whether it was a state or federal question. I had assumed it was
an interstate commerce thing. If the case is based on purely state
grounds then, no, it will not go to the federal courts. But I
already implied that.

As to what the Supremes will or won't grant certiorari, the smart
money doesn't bet at all.

[...]

>Perhaps not, but it sure *sounds* like you are bending over
>backwards to find a constitutional excuse for a blatantly
>unconstitutional practice.

OK. is it or is it not the federal constitution that's involved
here? You mention above about the 'state constitutional challenge".

History is filled with supposedly "blatant" cases that didn't work
out that way. I don't think it's blatant at all. My privilege.

>>As I said, there have been a number of such restrictions on
>>interstate commerce that have been upheld. California's border
>>inspections being an example.
>
>I don't think you can compare the two.  Better to compare
>California's car import duty to Florida's, which was also struck
>down.
>
>If California had fought the medfly by simply taxing all
>non-Californian produce, you can bet your last dollar that the law
>would have been struck down.

And they didn't. Whether a "fee" is an import duty or a legitimate
exercise of the police powers isn't as simple as you make it.
Calling it an "import duty" is pretty sure to make your law look
bad, though.


>>Only if the grounds was the state constitution. Was it?
>>
>Yes, it was.

I didn't say it had to be. Where did you get the idea I did say so?
But appeal to a federal court would require a federal issue. If the
CalSupremes say yea or nay to a state issue, it stays a state
issue.

>But where did you get the idea that the grounds had to be part of
>the state constitution?  That is totally irrelevant.  What is
>relevant is whether or not the California Supreme Court's holding
>depends entirely on its interpretation of federal law OR the
>federal constitution. No one seriously argues that California is
>*required* to impose its "smog impact fee." The only question is
>whether or not it can do so without violating California or
>federal law - constitutional or otherwise.  If California law
>prohibits it from collecting the tax, its constitutionality under
>the commerce clause is moot.

That's what I said.



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    ********** DAVE HATUNEN (hatunen@sonic.net) ***********
    *                Daly City California                 *
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