The clock is running out, and it seems the incredibly unpopular, regressive, possibly illegal, and damaging to the economy service tax still lives.
Did I say possibly illegal? Actually it is the opinion of this writer that it IS illegal on a number of levels. But lets display some real information. The following is an a letter to our representative Howard Walker by Attorney Michael J Gillman of Traverse City.
Dear Representative Walker:
Pursuant to our recent discussion, and your request, I have reduced to writing a few brief thoughts concerning possible challenges to the recent expansion of the Michigan Use Tax.
For the purposes of this discussion, I specifically eschew any personal opinion on the appropriate level of taxation, revenue need, or tax increase versus tax decrease. I respectfully submit that the recent enactment has other significant flaws which warrant it’s immediate repeal.
It is respectfully submitted there is a potential constitutional flaw that probably wasnt considered in the Middle-of-the-night haste to enact this new revenue source. I believe it is susceptable to challenge on the basis of US constitution’s 14th ammendment, which assures “the equal protection under the laws.” while the original intent of that civil war era amendment was to right racial wrongs, it was ultimately applied to economic interests by court decisions, before the 19th century ended. Under traditional constitutional analysis, economic legislation receives the lowest level of court scrutiny. Succinctly, the standard is “rationality.” Courts will not (should not) interfere with legislative decisions that judges or justices believe to be flawed on policy, common sense, or even moral grounds. But classifications which impose disparate burdens must contain rationality, or a reasonable basis upon which they are imposed. As was stated by Justice Jackson in Railway Express vs. New York 336 US 106 (1949): “Cities, States, and the federal Government must exercise their power so as not to discriminate between the inhabitants except upon some reasonable differentiation fairly related to the object of regulation.”
I don’t presume to predict the results if an “Equal Protection” argument were to be made to a federal court, but it does appear there are legitimate grounds for such a challenge. Rationality is sorely tested when hedge trimmers are assessed the tax, while lawn cutters are not; when golfers are exempted, while skiers are not. I won’t belabor you with some of the other lack of evenhandedness, in the recent enactment. The 14th amendment also requires due process, susceptible to challenge if the legislative action is arbitrary or capricious. It wouldn’t take and excessively imaginative attorney to describe the executive/legislative side show which produced this tax with exactly those terms.
Further, let me respectfully suggest that the constitutional flaw I see has not just substantive problems, but pragmatic ones as well. If a federal court were called upon to quickly respond to such a challenge, an injunction against the state of Michigan could quickly follow. Regardless of the end result of that litigation, two or three years later, the revenue source expected for budget balancing purposes would immediately disappear and the chaos of a few weeks ago would reappear, both to the detriment of the detriment of the state of Michigan
As we discussed at your home, my concern in the latter regard is such that I have presumed to share this correspondence with your legislative colleague, senator Jason Allen, and may well shareit with others, including the media. Aware that you are sympathetic with the position I have outlined, I do wish you well in your efforts.
Very truly Yours Michael J. Gillman
I have presented this in it original form, context etc..