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SACRAMENTO — State Supreme Court justices will be very reluctant to wade into the politics of the budget impasse on behalf of the Department of Education, court experts say. Nevertheless, the high court could face that difficult choice as early as next week, when state Superintendent of Public Instruction Jack O’Connell says he plans to file a petition asking the justices to break California’s budget stalemate. Republicans and Democrats missed the constitutional deadline to have a budget by June 15 because they cannot resolve differences over how to solve the state’s money problems. Democrats are the majority in both the Assembly and Senate yet don’t have enough people for the two-thirds vote needed to pass a budget. O’Connell said his action will name both houses of the California Legislature and possibly even party leaders as defendants. It will ask the Supreme Court to overrule the two-thirds vote requirement and allow a budget to be passed with a simple majority, said Robin Johansen of San Leandro’s Remcho, Johansen & Purcell. She spoke at an Education Department press conference Thursday. “The Supreme Court has described the two-thirds vote requirements as fundamentally undemocratic,” Johansen said, but didn’t mention particular opinions. It’s the highest-profile political case for Johansen’s firm since the death in January of Managing Partner Joseph Remcho. Remcho was wired into the Democratic political scene and represented Gov. Gray Davis, San Francisco Mayor Willie Brown, Attorney General Bill Lockyer and others. Pointing to the recent decision by the Nevada Supreme Court, O’Connell said the schools’ need to be fully funded trumps the two-thirds vote requirement. Nevada justices ruled last week that funding education trumps the two-thirds rule, which is in the state constitutions of Nevada and California. The Nevada ruling has been taken up in U.S. District Court. Johansen said the petition would not be limited to just the education portion of the budget but would attempt to unlock the entire stalemate. O’Connell’s threatened suit was slammed by Republican Party leaders, and immediately following the superintendent’s press conference, the Howard Jarvis Taxpayers Association and the Pacific Legal Foundation held their own event right outside Department of Education headquarters on N Street in Sacramento. John Coupal, president of the Jarvis group, evoked the memory of Chief Justice Rose Bird, and said any member of the Supreme Court who considers granting O’Connell’s petition would do well to remember that voters have mobilized in the past to remove a justice. “The two-thirds vote was specially adopted by the people of California to prevent runaway taxation,” Coupal said. “The California Supreme Court won’t want to go way out on a limb like in Nevada.” Court-watchers agreed and contend that justices won’t easily become involved even if they determine O’Connell’s suit is legally feasible.Politics is touchy business for the court — not only because of the separation-of-powers doctrine, but also because the court faces the possibility of retribution by legislators and the governor. Probably the best example of such payback can be found in 1991, when the court, led by Chief Justice Malcolm Lucas, upheld term limits for California politicians. After that decision, legislators cut the judicial branch budget and bad blood persisted until Ronald George took the middle seat in 1996. Santa Clara University School of Law professor Gerald Uelmen said the Supreme Court was the wrong place for O’Connell’s action, calling it “some sort of political grandstanding.” “Even lower courts are very reluctant to order elected officials to do anything,” Uelmen said. “The courts are not the appropriate tool to use when unhappy with a legislator’s performance.” That’s what elections are for, Uelmen said. Boalt Hall School of Law professor emeritus Stephen Barnett said the court would face an additional problem of not being able to craft a viable remedy. “Who could be ordered [to pass a budget]?” Barnett said. “The governor or Legislature? There could be a substantial problem of whether a writ could be enforced.” Although O’Connell and Johansen repeatedly explained that their request would not ask the court to compel the Legislature to adopt any particular budget plan, O’Connell, a Democrat, could not avoid discussing the political ramifications of his action. If the court does what he wants, the Democratic majority would be able to pass its budget, which is friendlier to education than the Republican version. Where the Republicans want to cut state spending, Democrats have proposed cuts and tax increases to help pull the state out of an estimated $38 billion hole. Treasurer Phil Angelides joined the suit as co-plaintiff, and Gov. Davis said he might sign up too. Although he said he would welcome “any” budget, O’Connell said he personally believes tax increases are needed. Asked if his threatened suit was merely a ploy to get Republicans to blink in the impasse, O’Connell said: “We have no hidden campaign.”

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