CLT
UPDATE
Thursday, November 13, 2003
Another "fee" ruled an
illegal tax:
Beacon Hill tax hike scam further exposed
In a little-noticed revenue-generating move widely reviled by lawyers, the state began last week to bill civil plaintiffs for anniversary fees, ranging from $90 to $120, to keep their cases alive in a system that regularly takes three or more years to settle lawsuits....
The new fee, many lawyers said, effectively penalizes plaintiffs who, often through no fault of their own, find themselves waiting years for the final resolution of cases in which they have already reached settlements or been awarded damages....
District courts began sending out bills last week, and clerks from superior courts and the Boston Municipal Court said they would do so beginning this week. Daniel B. Shapiro of Shapiro & Associates received his first anniversary fee bill in the mail last week, and he complained that it amounted to a tax on plaintiffs. "If you want to raise a few more bucks for the court system, fine, but do it in a way that's fair, equitable, and constitutional," he said.
Some lawyers have vowed to fight for repeal of the anniversary fee, even as court clerks across the state began issuing tens of thousands of invoices. This month, the superior courts alone will send out more than 20,000 invoices for anniversary fees.
The Boston Globe
Wednesday, November 12, 2003
New fees aid court, hike cost of justice
So-called conservatives are rallying around a new cause: free universal trash collection....
Pay-as-you-throw opponents don't want to call it a trash fee. They'd rather call it a tax. Their semantic games are equally transparent.
Sure, you can call a fee a tax. You can call it a rutabaga if you want, but that doesn't make it a starchy tuber....
There's a distinction here worth preserving. A tax is something everyone has to pay. A fee covers a service you can use or not....
Pay-as-you-throw is an end run around Proposition 2½, they cry, and it's true town officials are using it to save money in pinched budgets. But Proposition
2½ was enacted to keep the rising cost of government services from forcing outrageous increases in the property tax. Say what you want about pay-as-you-throw, it doesn't increase property taxes.
Such logic doesn't impress today's conservatives. They want their trash picked up by big government and they want it for free.
The MetroWest Daily News
Sunday, November 9, 2003
Conservatives for free trash
By Rick Holmes
Give him credit for struggling to obviate the simple truth: If we allow government to take services once paid for out of property taxes and begin charging a fee for each of them, then what is the purpose of the property tax? Where do such fees end? And what will become the bottom-line cost for government? ...
If we follow Holmes' alleged logic, then soon we'll be charged fees for police and fire protection, highway maintenance -- even for the salaries of our elected officials so the property tax slush fund can just be squandered on politicians' every whimsical boondoggle.
There's a reason why it's called a property tax; there's an expected quid pro quo implied.
The MetroWest Daily News
Wednesday, November 12, 2003
Letter: Trash column masks truth
By Chip Ford
The Silva-Faria Funeral Home on Tuesday won a lawsuit against the city after it challenged paying what the city called a "burial permit fee."
Superior Court ruled that the "fee" was illegal. Since 1995, funeral homes in the city have had to pay the tax, meaning their clients -- grieving families -- have actually footed the bill....
Martin A. Silva of Silva-Faria Funeral Home, represented the family-owned business.
He said the first burial permit fee was imposed in 1995 at $10. Although he opposed it, the funeral home paid it because it "was only $10." But, when that fee jumped to $20 in 2000, he and representatives from about six other funeral homes got together and took action because "it was a matter of principle."
"That’s when we decided to dig our heels in," said Silva. "We always had the feeling this was unconstitutional. And, we won."
The Fall River Herald News
Thursday, November 6, 2003
$20 death tax thrown out
"We think that the summary judgment record establishes that the burial permit charge exhibits more characteristics of a tax than of a fee." ...
"Whether an exactment falls within the category of a fee or a tax, however, 'must be determined by its operation rather than its specially descriptive phrase.'" ...
"Where charges have been determined to be valid fees rather than taxes, the fee has been for a particular service provided to a discrete group." ...
"Moreover, the fact that proper interment and the burial permit are compelled is further confirmation of the public nature of the benefit." ...
"Here, however, with uncontradicted evidence that the funds are deposited to Fall River's general account and nothing in the record to indicate the basis on which the charge was calculated or how the funds are used to defray expenses, we cannot conclude that the money collected is not used to subsidize general governmental operations." ...
"Sewer use charges have been found to be an invalid tax in circumstances where the use was compelled." ...
"We think that the burial permit charge is better characterized as a tax than a fee because the payer of the fee derives no benefit that is not shared by the general public, proper interment is mandatory, the burial permit is mandatory, and it does not appear in the record that the funds are used to defray the cost of enforcing the relevant regulations. The judgment declaring that the burial permit charge is a fee is vacated...."
Silva v. City of Fall River
November 4, 2003
[Excerpts from decision]
Chip Ford's CLT
Commentary
I've been concerned lately that Citizens for Limited
Taxation would soon need to change its name to Citizens for Limited
Fees.
Since taxes allegedly are "off the table"
but new revenue sources continue to be creatively engineered with taxes
disguised as fees -- a $650 million increase last year alone -- Beacon
Hill's sleight-of-hand bastardization of vocabulary might need an
appropriate response. So long as politicians can call a tax a
"fee" or "a rutabaga" -- the preference of MetroWest
Daily News columnist Rick Holmes -- why constrain ourselves to limiting
"taxes"?
The potential terminology for revenue is endless, as
recognized in Article XXIII of our state
Constitution: "No subsidy, charge, tax, impost, or duties, ought to be established, fixed, laid, or levied, under any pretext whatsoever
..." That doesn't even include the word "fee" ... though
the founders expended great effort attempting to predict every possible
permutation of the concept.
Thank goodness for the clear thinking of the Appeals
Court in its recent reaffirmation of the state Supreme Judicial Court's precedent-setting
distinction between a fee and a tax. I'd hate to be part of a group
called Citizens for Limited Rutabagas.
More and more afflicted "fee" payers have
begun to suffer the effects of this Beacon Hill scam and are taking to
the courts, and the courts are subsequently tossing out taxes cloaked as
"fees." That's good news, though it's yet another
Massachusetts sorry state of affairs. It is time-consuming, expensive,
clogs the already overwhelmed and under-funded court system, and
is utterly unnecessary -- or should be if those we elected
to represent us, from the governor on down, simply obeyed the laws
and the constitution they took an oath to uphold.
On June 3, the Boston Globe reported ["State told to return $18m to druggists"]:
Massachusetts officials bungled the implementation of a $36 million prescription tax, rendering it invalid, and now must return the $18 million collected so far from the state's pharmacies, a Suffolk Superior Court judge ruled yesterday....
[Judge] Van Gestel stated emphatically that the prescription tax, which the former acting governor, Jane Swift, and House lawmakers called an "assessment," was really a tax. "Despite political pronouncements to the contrary at the time of the enactment of [the law], what we are dealing with is an excise tax," van Gestel wrote.
That decision alone should have been a clear signal,
but our Beacon Hill lawbreakers plowed on regardless (clueless?) with
their unconstitutional tax hike scam ... because they wanted the money,
all $650 million more.
Now we have a group of attorneys up in arms over an
"anniversary fee" that they and their clients are just now
realizing.
The longer any case before the courts can be dragged
out, the more the state profits? Now there's some reverse, or perverse,
incentive for the speedy trials guaranteed under the constitution.
The "Granny Tax," the "fee" on
nursing home clients who are paying their own way, which was supposed to
illicitly go to nursing home clients who don't, who are on Medicaid, should be
ripe for overthrow, much as the prescription drug "fee" was.
It hasn't happened yet because -- unlike pharmacists -- the nursing home
industry leaders climbed in bed with our Beacon Hill lawbreakers and
thought they'd cut a cute deal. They actually believed if they dealt
with the devil they'd be rewarded with the bounty. But they've been
stiffed, the state's kept the money. They've been upset ever since, but
not enough to fight the fee. Only enough to insist on what they were
promised.
My birthday last Tuesday brought good news and bad.
The good news was the decision on that day in Silva v. the City of Fall
River: another cannon ball shot through the leaking hull of illegal
fees. The bad news was my four-year firearms license expired and needed
to be renewed. The fee for renewal last year jumped from $25 to $100 --
from $25 for four years to $25 for each of the four years. This
is my personal peeve.
Jim Wallace, legislative agent for the Gun
Owners' Action League, commented on this ridiculous fee increase
months back. He pointed out that he didn't need or want
a firearms license to exercise his Second Amendment right in the first
place, but if licenses are required then the fee should at least be
levied on those demanding the actual service -- the anti-gunowner
lobby and its supporters who promote licensing but don't apply for one!
This reminds me of all the hypocrites who vehemently
opposed our income tax rollback but then declined to take advantage of
our Voluntary Tax Check-off.
I contacted GOAL yesterday, sent them the Silva
decision, and volunteered to be the first name as a damaged party on any
challenge of the fee increase it decides to file. Already I've got my
name marked in history with Ford
v. Lashman, our 1989 superior court challenge of the illegal Dukakis
fee increases. Twice would be even better.
Consider the recent Silva ruling:
"Where charges have been determined to be valid fees rather than taxes, the fee has been for a particular service provided to a discrete group."
What "particular service" am I or my
"discreet group" being provided?
"Moreover, the fact that proper interment and the burial permit are compelled is further confirmation of the public nature of the
benefit ... Sewer use charges have been found to be an invalid tax in circumstances where the use was compelled."
Who among us is more "compelled" than
firearms owners to first obtain a license to exercise a right? Try
getting a firearm without a license.
"Here, however, with uncontradicted evidence that the funds are deposited to Fall River's general account and nothing in the record to indicate the basis on which the charge was calculated or how the funds are used to defray expenses, we cannot conclude that the money collected is not used to subsidize general governmental operations."
Specifically stated in the firearms license fee increase legislation
is that $50 of the $100 "fee" increase goes directly into the
state's general fund. Specifically so ordered.
We'd go into it with a clearly credible argument,
we'd have precedent on our side, we'd likely win, it would benefit some
200,000 firearms licensees, and we'd create further precedent against
illegal fees to continue building upon. I'm waiting to hear back from
GOAL and will keep you apprised.
Challenging this clearly illegal fee increase would
surely be a whole lot less complicated than challenging the fee
proposed on marriage licenses, as Barbara
and I intended to do before it was withdrawn, by our filing for a
marriage license then challenging the fee.
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Chip
Ford |
The Boston Globe
Wednesday, November 12, 2003
New fees aid court, hike cost of justice
By Thanassis Cambanis, Globe Staff
In a little-noticed revenue-generating move widely reviled by lawyers, the state began last week to bill civil plaintiffs for anniversary fees, ranging from $90 to $120, to keep their cases alive in a system that regularly takes three or more years to settle lawsuits.
Plaintiffs who can't afford the new charge could have their cases dismissed.
"It's bizarre and unfair," said Joanne D'Alcomo, a lawyer at Jager Smith PC.
The new fee, many lawyers said, effectively penalizes plaintiffs who, often through no fault of their own, find themselves waiting years for the final resolution of cases in which they have already reached settlements or been awarded damages.
District courts began sending out bills last week, and clerks from superior courts and the Boston Municipal Court said they would do so beginning this week. Daniel B. Shapiro of Shapiro & Associates received his first anniversary fee bill in the mail last week, and he complained that it amounted to a tax on plaintiffs. "If you want to raise a few more bucks for the court system, fine, but do it in a way that's fair, equitable, and constitutional," he said.
Some lawyers have vowed to fight for repeal of the anniversary fee, even as court clerks across the state began issuing tens of thousands of invoices. This month, the superior courts alone will send out more than 20,000 invoices for anniversary fees.
But the official who originally suggested the new levy -- Governor Mitt Romney's chief counsel, Daniel B. Winslow -- said opponents of the fee should focus on the message behind it: "Justice delayed is justice denied."
"Massachusetts has one of the slowest and most expensive civil justice systems in the country," Winslow said. "There are management challenges and cultural attitudes that need to be changed."
The state courts have been locked for years in a battle with legislative leaders over control of the court budget and hiring procedures. Since Romney took office in January, he has attacked patronage and inefficiency in the state court system, losing a bid to merge the Boston Municipal Court into the district court system.
The law establishing anniversary fees took effect Oct. 1, and it requires civil plaintiffs in superior court to pay $120 every year their case remains on the docket after it was filed. In district court and the Boston Municipal Court, the annual fee is $90.
The statute makes no exceptions for indigent plaintiffs, who are excused from paying filing fees, or for plaintiffs in cases such as medical malpractice and product liability that routinely take at least three years to reach trial.
Court clerks say they can barely keep up with paperwork from the thousands of cases already wending their way through the system. About 25,000 new civil cases are filed every year in superior court. Last year, the state court system sustained an $18 million budget cut, but this year the Legislature raised its budget by more than $3 million, although for the first time about 10 percent of the court system's budget is contingent on collecting court fees for things such as probation services.
Between fiscal year 2002 and fiscal year 2004, the state's trial courts lost more than 1,000 employees through layoffs, attrition, and early retirement.
"It's certainly added an additional burden to what we think is an already overtaxed staff," said Michael Donovan, head civil clerk at Suffolk Superior Court and president of the Superior Court Clerks Association.
In preparing to assess the new fees, Donovan said his staff pored over about 5,600 cases that are more than one year old.
Court officials met last week to create uniform procedures for charging anniversary fees. They had wanted to exempt some plaintiffs from the fee, such as people renewing restraining orders in domestic abuse cases, but after examining the statute made exceptions to the fee only for the cases in which the plaintiff is the Commonwealth of Massachusetts or has filed for bankruptcy.
In superior courts statewide, more than half of the 37,700 civil cases are at least a year old. Court officials don't have statistics on the age of cases in the district court system and Boston Municipal Court, where in fiscal year 2002 a total of 81,437 civil cases were filed.
"Do we really want our court clerks spending their time like employees of credit card companies, assessing interest, collecting late fees, keeping track of payments?" D'Alcomo asked. Members of the Massachusetts Bar Association have criticized the fee, and plan a vote on whether to lobby for its repeal.
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The MetroWest Daily News
Sunday, November 9, 2003
Conservatives for free trash
By Rick Holmes, Daily News Columnist
So-called conservatives are rallying around a new cause: free universal trash collection.
Universal health care? They're against it. Wouldn't want the government in charge of something like health care. Free pre-school? They're against it. People who need pre-school can pay for it themselves.
But suggest homeowners pay to have their trash picked up at the curbside and you're asking for a fight. What are you, some kind of Communist?
More than 100 Massachusetts cities and towns have now moved to systems that require homeowners to buy stickers or special bags for their trash on the simple theory that the more you throw away, the more you should pay. Pay-as-you-throw has increased recycling and sold a few trash compactors. As near as I can tell -- my town has been doing this for years -- it hasn't resulted in increased littering or destroyed the American way of life.
But there's fear and outrage in communities still collecting trash the old-fashioned way. In Natick, a conservative gadfly has collected enough signatures to force a special election to kill that town's new pay-as-you-throw system. Framingham officials haven't even adopted pay-as-you-throw yet, but they've already had to fend off a Town Meeting article demanding every penny raised be offset in reductions to the property tax.
Framingham officials don't even want to mention pay-as-you-throw. They'd rather call it "incentive-based recycling." Please.
Pay-as-you-throw opponents don't want to call it a trash fee. They'd rather call it a tax. Their semantic games are equally transparent.
Sure, you can call a fee a tax. You can call it a rutabaga if you want, but that doesn't make it a starchy tuber.
There's a distinction here worth preserving. A tax is something everyone has to pay. A fee covers a service you can use or not. If you don't drive to a state park, you don't have to pay a parking fee. If you don't want to pay a Mass. Pike toll, use another road.
If you don't want to pay a fee for your trash, create less trash or take it elsewhere. Framingham is looking at giving you your first bag free, which is a reasonable compromise. Natick still pays half the cost of trash collection from tax receipts. I'd like to see towns keep their transfer stations open at least one day a week, so that people who don't want to pay for curbside pickup can deliver their trash themselves.
But those are moderate solutions for moderate voters. True conservatives should embrace the conservative solution: Privatize it.
Believe it or not, government-provided trash collection is not guaranteed in the Constitution. Nor is it a service, like national defense or fire protection, that can only be provided by the government.
Anybody with a pickup can collect your trash and take it to a landfill or incinerator. Why should it be done by public employees with union contracts, clout in Town Meeting and generous benefits?
Lots of communities don't provide curbside pickup. In tony suburbs like Wellesley and rural outposts like West Brookfield, it's up to the homeowner to contract with a private hauler. Even some big cities -- including San Francisco, if memory serves -- let private enterprise take out the garbage.
The conservative solution doesn't appeal to conservatives in Framingham and Natick. Pay-as-you-throw is an end run around Proposition
2½, they cry, and it's true town officials are using it to save money in pinched budgets. But Proposition
2½ was enacted to keep the rising cost of government services from forcing outrageous increases in the property tax. Say what you want about pay-as-you-throw, it doesn't increase property taxes.
Such logic doesn't impress today's conservatives. They want their trash picked up by big government and they want it for free. It's a small issue that reveals the big secret about modern conservatives: They rant about their rights and rail about their country. But what they really care about is their money.
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The MetroWest Daily News
Wednesday, November 12, 2003
Letter: Trash column masks truth
By Chip Ford
In his column, "Conservatives for free trash" of Nov. 9, Rick Holmes scolds fiscal conservatives with: "Pay-as-you-throw is an end run around Proposition
2½, they cry, and it's true town officials are using it to save money in pinched budgets. But Proposition
2½ was enacted to keep the rising cost of government services from forcing outrageous increases in the property tax. Say what you want about pay-as-you-throw, it doesn't increase property taxes."
Give him credit for struggling to obviate the simple truth: If we allow government to take services once paid for out of property taxes and begin charging a fee for each of them, then what is the purpose of the property tax? Where do such fees end? And what will become the bottom-line cost for government?
"Such logic doesn't impress today's conservatives. They want their trash picked up by big government and they want it for free," he disingenuously asserts. But how is expecting a service historically paid for from property taxes possibly rationalized as being "for free"? Is it government's money once it passes from our hands?
If we follow Holmes' alleged logic, then soon we'll be charged fees for police and fire protection, highway maintenance -- even for the salaries of our elected officials so the property tax slush fund can just be squandered on politicians' every whimsical boondoggle.
There's a reason why it's called a property tax; there's an expected quid pro quo implied. The solution to his perceived problem instead is greater fiscal responsibility, not simply calling a deceptive end run around Proposition
2½ a "rutabaga" when it's an increased burden on taxpayers, by any name.
CHIP FORD
Director of Operations
Citizens for Limited Taxation
Peabody
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The Fall River Herald News
Thursday, November 6, 2003
$20 death tax thrown out
By Deborah Allard-Bernrdi, Staff reporter
FALL RIVER -- Everyone knows there are two inevitabilities in life: death and taxes. But how many families realize that when a loved one dies, they’ve been paying a tax to the city?
The Silva-Faria Funeral Home on Tuesday won a lawsuit against the city after it challenged paying what the city called a "burial permit fee."
Superior Court ruled that the "fee" was illegal. Since 1995, funeral homes in the city have had to pay the tax, meaning their clients -- grieving families -- have actually footed the bill.
Martin A. Silva of Silva-Faria Funeral Home, represented the family-owned business.
He said the first burial permit fee was imposed in 1995 at $10. Although he opposed it, the funeral home paid it because it "was only $10." But, when that fee jumped to $20 in 2000, he and representatives from about six other funeral homes got together and took action because "it was a matter of principle."
"That’s when we decided to dig our heels in," said Silva. "We always had the feeling this was unconstitutional. And, we won."
Oddly enough, until 1955, Fall River paid funeral directors 25 cents for each death certificate they obtained and filed, according to a Superior Court summary statement.
Silva said the city paid the fee because the service saved city workers time in having to fill out the death certificate.
Municipalities do not have the power to create new taxes, but they can impose regulatory fees.
"We are not concerned with Fall River’s authority to impose a fee, but with whether the exactment is, in reality, a tax," according to a Superior Court statement prepared by Judge Ellsbeth
Cypher.
However, if a fee is charged, such as for a building permit or marriage license, the fee must benefit the party paying the fee, and not be shared with other members of society.
In this case, the description didn’t fit.
"We think that the issuance of the burial permit does not benefit Silva or any other permit seeker in a manner not shared by the general public," wrote
Cypher. She goes on to say that "the disposal of human remains is an "essential governmental function" which clearly benefits society.
The fee must also present the payer an option. For example, a citizen can choose not to build an addition on his house and avoid paying the fee. But, Cypher says there is no choice involved when someone dies and that anyone dying in Fall River "will be unable to avoid the fee."
The third stipulation for a charge to be regarded as a fee states that the fee must be collected to compensate the entity providing the service, not to raise revenue.
"It appears that the burial permit fee is a charge for merely recording the permit," Cypher wrote.
And, apparently, burial fees raised were deposited into the city’s general account. The city did not present any evidence otherwise. The city provides no regulatory service to the funeral industry. Funeral homes pay licensing fees and are inspected by the regulatory Board of Registration in Embalming and Funeral Directing.
The city’s Board of Health, which was collecting the fee, provides no regulatory services. It does issue licenses to funeral homes and makes regulations concerning burial grounds and interments within the city, however.
Thomas F. McGuire, who represented Fall River, said it was the city’s position that the charge was a fee. Other municipalities in the area also charge a burial fee, such as Attleboro, Taunton and New Bedford.
The town of Swansea recently imposed a similar $10 recording fee in July. According to Town Administrator Gregory W. Barnes, it is to record burials, but the fee is charged for all documents that are recorded. He said the fee was approved at Town Meeting last year, analyzed by town counsel and signed off on by the attorney general.
"We’re comfortable at this time with what we’ve done," said Barnes.
Now that a precedent has been set with the funeral home’s victory, there could be widespread repercussions and additional lawsuits in other municipalities, according to McGuire. "They would all be affected," he said.
However, because of the statute of limitations, funeral homes and families of deceased loved ones shouldn’t expect much in terms of compensation. Silva said that is still up to the courts.
McGuire said he has dealt with several cases that dispute the difference between fees and taxes, and that "it’s sometimes hard to tell" and rulings come down "all over the place."
This is the first time he’s seen one dealing with a death tax, however.
He said some cities may be using the death fees to offset the recent budget cuts.
"Cities and towns are trying to keep afloat," McGuire said.
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