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Posted on 07/16/2003 4:12:29 PM PDT by churchillbuff
July 16, 2003 at 11:27:27 PDT
Federal jurisdiction questioned
Prompt ruling on impasse promised By Erin Neff LAS VEGAS SUN
Federal judges questioned this morning whether they had jurisdiction to wade into the state's legislative budget impasse by ordering a permanent restraining order against the state Legislature.
In a rare hearing in front of all active U.S. District Court judges in Nevada, judge after judge questioned whether they could overturn a state Supreme Court ruling that set aside a constitutional amendment requiring the Legislature pass a tax plan with a two-thirds vote.
"I think everybody can see the lack of zeal, and it's understandable, of this court to take up the issue," Chief U.S. District Judge Philip Pro said near the end of oral arguments in the case this morning.
After a hearing that lasted 1 hour, 45 minutes, Pro said the judges -- meeting in both Las Vegas and Reno via teleconference -- would adjourn to discuss the case.
"We're going to decide as promptly as we can," Pro said.
The court clerk said it would issue a written opinion as soon as it was finished. There was no indication when that would be, although two federal jury trials were on hold while the court was meeting on this issue.
During the hearing, in which judges peppered both sides with questions, John Eastman, a California-based attorney representing nine GOP senators and 15 GOP assemblymen, repeatedly attacked the July 10 opinion of the Nevada Supreme Court.
Ruling on Gov. Kenny Guinn's lawsuit to force the Legislature to break the budget impasse, the state court ruled that lawmakers could pass a tax plan with a simple majority to fund the state's K-12 education system.
"To give credence to such a decision would itself create problems," Eastman said, arguing the opinion violated due process for voters who in 1996 authorized the two-thirds majority vote on taxes.
"The Supreme Court eviscerated that structural requirement."
But Pro repeatedly interrupted him, at one point saying: "Your problem is with the Nevada Supreme Court and your direct appeal is to the U.S. Supreme Court."
Eastman argued he would not succeed in a writ to the U.S. Supreme Court because not all of his clients were a party to the suit that resulted in the opinion.
The Assembly, by a vote of 26-16, approved a tax bill Sunday. But 24 Republican lawmakers filed suit in U.S. District Court Monday seeking a restraining order on lawmakers for further consideration of that tax bill.
Since the 24 lawmakers were joined by citizen activists and anti-tax groups in the suit, other plaintiffs were not a party in the original case before the Nevada Supreme Court, and, Eastman said, they had no remedy to appeal to the U.S. Supreme Court.
But he also admitted that should the federal judges rule against him today -- and withdraw the temporary restraining order Pro granted Monday -- he would file a writ asking the U.S. Supreme Court for relief.
"If you rule against me today, I will be filing it," Eastman said.
Judges repeatedly asked him to prove they had jurisdiction. At one point in today's proceedings Judge James Mahan even asked Eastman how many of his clients had voted to increase the state's budget.
"They would have unclean hands, wouldn't they?" he asked.
Eastman said he did not know the answer to the question.
Later in the proceedings, when Legislative Counsel Bureau attorneys argued to defend the individual legislators named Monday in the suit, Judge Howard McKibben in Reno questioned whether lawmakers would be able to achieve a two-thirds vote on a tax plan on their own.
"What are the prospects?" he asked, to significant laughter in the standing-room-only courtrooms.
"I'm sorry, your honor, I just don't know," answered legislative counselor Wil Keane.
The Legislature has failed in its 120-day regular session and two special sessions to garner the votes. Only the Senate approved a plan, and that plan failed to get the required support in the Assembly.
While judges clearly stated their unease with treading into the state Supreme Court's territory, they also subtlely questioned the court's opinion.
Judge Larry Hicks said he interpreted the Supreme Court's ruling to mean that the Legislature can proceed with a simple majority vote for any tax plan -- even those beyond the current special session.
Keane disagreed.
Later, Judge Roger Hunt asked legislative attorney Brad Wilkinson whether lawmakers were charged with following a court order "even when they violate the constitution."
"If they're to be punished, it's at the ballot box on election day and not by a court," Wilkinson answered.
Jeff Parker, state solicitor general, said he thought Eastman did have one route for appeal to the U.S. Supreme Court since many of his plaintiffs did file a brief for relief in Guinn v. Legislature that the state Supreme Court denied.
"The gist of the counter petition was interpretation of constitutional requirements," Parker argued, suggesting the case could go to the nation's high court.
Parker also said they could ask the state Supreme Court for reconsideration on the issue.
But I don't see how the federal government gets involved; trying to stretch "due process" to cover this is the sort of thing we should leave to the radicals.
I agree that it's tough to find a federal issue, but it may be there. Regardless, how would the legislature simply refuse the order of the court? Aren't there enough votes (50% + 1) to get the increase?
The question is whether the state court has this power under the Nevada constitution. It's like the Florida election ruling.
Good point.
Separation of powers is a principle of the federal Constitution; it is not a violation of the U.S. Constitution for Nevada courts to violate the separation of powers.
The leadership of each house could declare that the tax increase had failed because it did not get a supermajority vote, and the members of each house could go along--even if they support the tax.
This would, of course, involve politicians (and mainly leftist politicians, at that) standing up for Constitutional principle even at the cost of not getting what they want, and how likely is that?
Another cause can be Art 4 Sec 2, "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial proceedings of every other State." This affects neighboring states, whose courts can legitimately consider precedent from the appelate courts of this state. 
That's right, the Separation of Powers principle exits to secure certain and unalienable rights of the people.
it is not a violation of the U.S. Constitution for Nevada courts to violate the separation of powers.
It may be for the reason I described, especially when referring to the sources under which the Constitution was drafted.
Then there's the fact that this is a CIVIL case involving a State:
Jurisdiction Confined to Civil CasesHere is the Judicial Act of 1789, Section 13:Snip
Wisconsin sued a Louisiana corporation to recover a judgment rendered in its favor by one of its own courts. Relying partly on the rule of international law that the courts of no country execute the penal laws of another, partly upon the 13th section of the Judiciary Act of 1789 which vested the Supreme Court with exclusive jurisdiction of controversies of a civil nature where a State is a party (which is what I cited -CO), and partly on Justice Iredell's dissent in Chisholm v. Georgia,929 where he confined the term ''controversies'' to civil suits, Justice Gray ruled for the Court that for purposes of original jurisdiction, ''controversies between a State and citizens of another State'' are confined to civil suits.930
Section 13. That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.Note that the Supreme Court has appellate jurisdiction, but not exclusive jurisdiction in civil suits between citizens of a State and the State itself. Want a precedent? Consider the Supreme Court overturning Florida in the last election.
Article III states that it depends upon federal statutes whether such a civil case is justiceable under Federal law. Such would be the Judiciary Act of 1789.
My guess is that the Congressional Act admitting Nevada to statehood also has provisions under which this case can be brought. Every State in the Union has a Republican form of Government, approved upon entry to the Union.
Of course things would have to be pretty bad before this would apply. Preventing the establishment of a monarchy in a state seemed to be the drafters' main rationale behind this article.
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