Some Thoughts On Making A Transportation “Lock Box” Judicially Enforceable

Governor Malloy has renewed his call for a constitutional amendment that would create a “lock box” for tax revenues dedicated to transportation infrastructure projects. He wants to ensure that certain sales tax and other revenues are actually used for the purpose for which they were levied.

I express no opinion on [have no expertise germane] to whether a transportation lock box makes good sense as a matter of public policy. I do have an opinion, however, on whether a lock box amendment would be judicially enforceable. My opinion is that unless the proposed amendment contains specific language vesting jurisdiction in the state courts to decide cases involving alleged violations of the lock box, the Connecticut Supreme Court will is likely to treat lock box disputes as “political questions” over which the judicial branch has no jurisdiction. The end result could be “feel good,” but legally unenforceable, language in the state constitution.

My concern derives from how the Supreme Court has treated questions involving the state spending cap, which was enshrined in the state constitution in 1992 as a way to assuage the public’s concerns about the Weicker administration’s new state income tax. As I explained in prior posts discussing the spending cap, it is legally unenforceable because the Supreme Court views claims alleging non-compliance with the cap as political questions that are outside of its jurisdiction to resolve.

Does this mean that a lock box amendment can never be judicially enforceable? Absolutely not. It just means that the amendment needs to contain language that makes it very clear to the Supreme Court that the judicial branch has jurisdiction to resolve lock box disputes and that it must exercise that jurisdiction, no matter how politically distasteful it may be to do so.

Our state constitution is not a stranger to such language. To illustrate, consider Article third, section 6 of the state constitution, which sets forth the procedure for reapportioning political districts following each U.S. census. The procedure calls for the General Assembly to adopt a plan of redistricting, and then for an appointed commission to undertake that task if the General Assembly fails to do so within a certain deadline. There is nothing more political than drawing the lines that demarcate congressional districts. Yet Article third, section 6.d. also vests original jurisdiction in the Supreme Court to resolve reapportionment disputes.  (See, e.g.,  In re Petition of Reapportionment Commission.) Indeed, that section requires the Supreme Court itself to decide such disputes within a specific time frame:

Original jurisdiction is vested in the supreme court to be exercised on the petition of any registered voter whereby said court may compel the [redistricting] commission, by mandamus or otherwise, to perform its duty or to correct any error made in its plan of districting, or said court may take such other action to effectuate the purposes of this article, including the establishing of a plan of districting if the commission fails to file its plan of districting by the first day of September as said court may deem appropriate. Any such petition shall be filed within forty-five days of the date specified for any duty or within forty-five days after the filing of a plan of districting. The supreme court shall render its decision not later than sixty days following the filing of such petition or shall file its plan with the secretary of the state not later than the fifteenth day of December next following the completion of the decennial census of the United States. Upon receiving such plan the secretary shall publish the same forthwith, and, upon publication, such plan of districting shall have the full force of law.

In short, if the General Assembly responds favorably to the governor’s call for a transportation lock box, it should recall the legal history of the spending cap and include language in the lock box amendment that ensures it is judicially enforceable.

UPDATE: (12/16/15): A few readers have asked me about other provisions of the federal or state constitutions that the courts have deemed legally unenforceable on “political question” grounds.  There are quite a few.  As but one example, Article IV of the U.S. Constitution guarantees that all states shall have a “Republican form of government.” The U.S. Supreme Court has held that disputes about this guarantee are political questions.

That a constitutional provision is unenforceable on political question grounds does not mean, however, that it is completely meaningless.  Such a provision may still have some political value.  Elected representatives must acknowledge the existence of the provision in the political realm, if not the judicial realm, and voters can still hold their representatives to account for failure to honor the provision.  But I think it would be misleading the citizens of the Nutmeg state to ask them to amend the state constitution to include a lock box provision without explaining to them that it may very well not be enforceable in court.

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