Baker questions legality of legislative action on tax break

Attorney General Thurbert Baker said Wednesday that Republicans in the House and Senate might have violated state law in approving a controversial $387 million tax break last week, but said it's difficult for him to determine if courts would rule against lawmakers.

Baker said it "appears" Republican leadership "has not strictly adhered to the procedures imposed on itself by statute," according to a letter the attorney general sent to House Minority Leader DuBose Porter (D-Dublin).

Porter said Wednesday that Baker's letter "clearly indicates they did not follow the law." House Speaker David Ralston (R-Blue Ridge) and Lt. Gov. Casey Cagle declined comment on Baker's letter, which does not have the power of law.

But, should the new law be challenged in court and overturned, it would throw the 2011 state budget out of balance, leading to up to an additional $100 million in cuts.

Porter had asked Baker for an official opinion of the General Assembly's action last week in approving a bill, HB 1055, that originally featured nearly $100 million in fee increases. But when the bill hit the House floor last week, Republican leaders amended it to include a tax cut for wealthy retirees and a phaseout of the small property tax bill that goes to the state.

Seniors and property owners wouldn't see any savings before January 2012 and wouldn't get the full benefit of the tax breaks until January 2016, when fully phased in.

Porter and other Democrats argued that state law says no bill that has a "significant impact on the anticipated revenue or expenditure level of any ... state agency" can be considered by the House or Senate if it is introduced after the 20th day of the legislative session. The law also requires an official estimate, known as a fiscal note, of a bill's impact on state revenues.

The bill was approved in the House and Senate on April 15, the 36th day of the 40-day session. It was introduced well before the 20th day, but no fiscal note was included. The bill passed largely along party lines as Democrats questioned whether the bill was legal as amended. Both Ralston and Cagle overruled Democrats' objections and said the bill was allowable.

"The apparent failure of the General Assembly to adhere to laws generally applicable here raises significant legal questions that could result in challenges to the process engaged by the Legislature," said Baker, a Democrat seeking the party's nomination for governor. Porter is one of his four opponents in the Democratic primary.

But Baker said the "ultimate question ... is whether a court would determine there exists a substantive remedy for the failure to follow the procedural requirements established" in state law.

Baker said he has not been privy to what legal advice Cagle and Ralston received in ruling the bill allowable, so "it is impossible for me to ascertain whether or not their decision  making was consistent" with state law.

Baker noted, however, that the state Supreme Court has ruled that the lack of a fiscal note on a bill signed into law does not necessarily mean the bill is unconstitutional.

Staff writer Nancy Badertscher contributed to this article.