Wednesday, April 11, 2018

Francheschi v. Yee (9th Cir. - April 11, 2018)

I've seen plenty of unsympathetic plaintiffs asserting unsympathetic claims in my day.  I'm definitely adding this one to the list.

Plaintiff claims that it's unconstitutional to publish a list of the 500 most delinquent taxpayers in California that owe over $100,000 in back taxes and to suspend their driver's license.  Call me crazy when I say that I'm not totally itching to strike down the law and protect people who don't pay their massive tax debts.  Boo-hoo.

And the plaintiff himself only obviates any lingering sense of sympathy I might otherwise have.  He failed to file any California income tax returns from 1995 and 2012.  That's seventeen years of taxes.  And owes a boatload of money.

Oh, one more thing.  Lest any lingering sympathy exist.

He's an attorney.

Yep, the plaintiff is Ernest Joseph Franchesci, Jr.  A Los Angeles attorney and Southwestern Law graduate.  He litigates his Ninth Circuit appeal pro se.  And gets crushed.

For good reason.  In my view, Mr. Franchesci is lucky he's not in prison and/or disbarred.  The lack of a driver's license should, in my opinion, by the least of his worries.

His legal claims are also completely meritless.  He says the suspension of his license doesn't give him sufficient procedural due process.  Ignore for the moment the controlling Supreme Court precedent to the contrary that the Ninth Circuit says Franchesci ignores.  There's no doubt whatsoever that there are sufficient pre-deprivation procedures to challenge the relevant tax liability.  As the Ninth Circuit explaines:  "Franceschi’s arguments overlook the fact that he had a readily available, constitutionally valid, pre-deprivation opportunity to prevent the suspension of his license. After receipt of the notice of revocation and before his license was suspended, Franceschi could have challenged his threatened suspension by paying his taxes and filing a refund claim with the FTB. See Cal. Rev. & Tax Code § 19382. The payment of his tax liability would have allowed him to retain his driver’s license. He would then have the opportunity to file a refund claim and challenge the original tax assessment. In the event the FTB denied his refund claim, he could still obtain relief by suing for a refund in California Superior Court."  Spot on.

And then Franceschi makes the even sillier claim that the statute violates substantive due process because . . . get this . . . it makes it harder for him to be an attorney.  Because the most important thing in the universe is to make sure that Mr. Franceschi gets to continue to practice law without having to pay his massive tax liabilities.

The Ninth Circuit's response should warm the heart of any Los Angeles-based attorney facing the daily prospect of navigating through rush hour traffic:  "No doubt an inability to drive oneself around Los Angeles could make the practice of law more difficult. However, Franceschi still has access to public transit, taxis, or services such as Lyft or Uber. Accordingly, whatever burden may exist does not amount to a “complete prohibition” on Franceschi’s ability to practice law, and thus, does not rise to a violation of substantive due process."

In case I've been unclear, let me say it again:

This isn't a sympathetic plaintiff with a sympathetic claim.