Last week, I told you about two ordinances being considered by Northampton County Council. The first of these, the American Heroes Grant, proposes property tax rebates for soldiers on active duty this or next year. The second, the Greatest Generation Grant, provides county tax refunds to WWII vets.Obviously, these are both good ideas, intended to reward those who serve in the military. But when I wrote about the proposal, I had this concern. "The only question, and it's a biggie, is whether this is legal. Lehigh County's solicitors think so, but they won't be representing Northampton County if it gets sued."
Lenny Zito, a former judge, is Northampton County Council's solicitor. During last Friday's council meeting, Angle asked him to research these proposals. Yesterday, Zito concluded both ordinances are illegal. I don't have a copy of the opinion, but understand Zito is troubled that the grants, as written, lack uniformity. He also has concerns over the funding source.
I don't know whether council can draft new ordinances that overcome Zito's legal objections. I doubt anyone would be crazy enough to sue over these ordinances. Not even me. But council needs to see if they can be redrafted.
12 comments:
Where did you get that picture pal.
Bernie -
How is it illegal?
AJ, I don't have the opinion. If i can get it, I'll share Zito's thinking.
I'll be interested in his reasoning, which will probably invoke the Uniformity clause and claim that this is not a traditional "class" of taxpayers in the traditional sense. I'll disagree with him b/c I don't think the state constitution or caselaw lays out a method by which "class" can be established. But I'm not a lawyer, only researched the matter in grad school and when I worked in the state house.
I look at this no differently than I do the property tax and rent rebates established by the state and some school districts. People pay their taxes (or rent) and then file for the rebates at the end of the year. My understanding is that the vets will still need to pay their taxes, but will need to file for their rebates in order to receive them. That system has been around for a while, so I'm curious to see Zito's opinion.
I've had some reservations about this as well.
The difference between solicitors in NC and LC is that there, they'll give you the opinion you tell them you want. Here, they tend to be more honest.
LVDem, if I'm lucky enough to get a copy of Zito's opinion, I'll share it. Part of his concern is uniformity. I don't think you can have a benefit for one class of soldiers without providing the same benefit to all. I know Angle intended that, but the ordinance he proposed only applies to the Greatest Generation.
Perhaps a new ordinance that applies to all vets, but over time, might work. The reason the county can't do this all it once is it can't afford it.
the issue of establishing a class is not easily defined, but the courts have been fairly consistent in saying that a "class" is a legislative determination. For example, not all seniors get property tax and rent rebates. Only low/mod income seniors (or persons of disabilities) can receive them. Under Zito's logic, the use of that class would be deemed in violation of the uniformity clause. Since the constitution does not spell out the exact nature of a "class" the courts have generally allowed the legislative body to make that determination, so long as the determination does not violate other parts of our constitution or the US constitution (say a class created on the basis of race or gender). The question of whether or not the "class" is too restrictive has historically been a political question, not a legal question. Saying that this particular "class" should include other veterans is a question of policy, not of procedure under the constitution.
So county council, according to that reasoning, could determine that nature of the "class", regardless of how large or small it is. This is one area in which I am confident enough in my understanding of the caselaw (the only constitutional issue I can say that) to say that Zito is off if this is the logic he uses. I'm not saying it would be poor legal advice, but just legal advice that doesn't have a firm understanding of a "class" under PA's system.
But I do agree with you on one thing: I'd be shocked if anybody challenged this one. The opinion passed down by the court would likely say "if you don't like the definition of this particular 'class', work through the political system to change it."
It would be great to expand this to all soldiers in time, but I think we should exclude those Rough Riders from the Spanish American War. Trouble makers all of them.
LVDem,
I don't have Zito's opinion and only heard it discussed by nonlawyers. When I learn his reasoning I'll share it. He impresses me as a very astute legal scholar. He's probably the brightest guy I've seen who's served as council solicitor.
why is this a 'good idea'?
Well, since it's illegal, it can't be that good of an idea. But I love the idea of giving breaks to people who don't have a lot of money, instend of to developers and big time political contributors.
Here is today's MCall article. Doesn't appear that Zito is saying that the tax breaks are illegal, but they do need some work, in particular intent (which is easy to work out) and definitions of home ownership (again, easy to work out) and deployment (would this be tough?). From what the article says, Zito's concerns have nothing to do with issues of defining a "class". But this is a news article, not the legal opinion itself.
What's really interesting is that Zito's problem appears to be that the bill was not written very carefully.
LVDem,
"Without more enhancement as to the intent in the classification and designations, these ordinances invite judicial interpretation."
It appears that the objection is that the ordinances, as drafted, are illegal bc they don't properly define the class. Zito does think it needs to be written more carefuly.
I wish those idiots, and I mean Dertinger, McClure and Angle, would quit insulting each tyoher and see if this could be fixed.
Looks like Stoffa has some reservations, and thinks it could be a "runaway freight train."
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