The Jensens, alongside their lawyers (Jonathan Lappen and Kendrick Moxon), sued the FTB to recover some taxes they paid to California on the ground that Proposition 63 -- which imposed a one percent state income tax on incomes in excess of $1 million in order to pay for mental health services -- was unconstitutional because the wealthy are a "suspect class" and the statute was not narrowly tailored to benefit this class. I agree with everything that Justice Boren (nice sweater vest, by the way) says in this short opinion rejecting this claim. It's a benefit to be a million-dollar-a-year man, not a detriment. The wealthy aren't a suspect class. They're a powerful class, the exact opposite. And citing cases that say that the poor are a suspect class hardly proves that being the opposite is also suspect.
Is part of me sympathetic to the position that it's easy to tax a select minority -- the rich -- to pay for something for everyone? Sure. But that's totally fine. The rich have more. They can pay more. Both absolutely and relatively. Marginal utility of income. Basic stuff like that. To say that the Constitution prohibits this stuff is, well, simply absurd. Indeed, sanctionable.
There are admittedly some situations in which I wouldn't sanction the Jensens (as well as their lawyers) for making the contrary claim. For example, if they said in their briefs -- which I readily admit I haven't read -- something like "We concede that the rich aren't a suspect class under existing law, but we believe they should be," that's just fine. That's an argument in favor of changing the law, and I'd conclude it's a good faith one. One I totally don't buy, but I can see why someone might adopt that view, and they've got a right to have it heard in court without being spanked.
But if the Jensens instead said (as I imagine they probably did) that existing law supported their view, I'd have sanctioned them. And made them pay an even larger proportion of that million-dollar-plus a year income to the state to reimburse it for the attorney's fees it had to spend in response to their lawsuit.
POSTSCRIPT - One of the plaintiffs' attorneys I mentioned in the post sent me a relatively polite e-mail that attached the opening brief, the contents of which (as I said) were definitely relevant to whether I'd have thought that sanctions were warranted. So I read it. And my reaction is . . . the contents do indeed matter. Plaintiffs' counsel did a couple of things that I'd have definitely avoided; e.g., citing a minority opinion as the ruling of the California Supremes (though others have made that same mistake with this opinion). Moreover, the content of the brief definitely paints a clearly misleading picture of precedent, in addition to being clearly wrong on the merits. That said, however, while the brief comes definitely close to the line, in the end, I think that having now read it, I would indeed not have sanctioned anyone. It's a definite piece of advocacy -- indeed, a well-written and well-structured one -- and while it comes in many places perilously close to affirmatively misstating the law by entirely ignoring key distinctions, I think the thing is more properly viewed as being within the permissible (and very broad) bounds of proper advocacy. Perhaps my opinion would change (again!) if I read the reply brief, which the lawyer didn't send. But I somewhat doubt it. My overall sense is that the attorneys submitted a piece of legal advocacy that was on the bleeding edge of what you can do without being forced to admit that your arguments are wrong and that you're asking for a change in the law. That may perhaps be an indictment of the adversary system or the content of the relevant ethical rules. But, upon further review, I don't think it's an indictment of these lawyers. Or at least not a monetarily sanctionable indictment.
