Filing challenges high court ruling: Federal Judge blocks Nevada Assembly's tax-increase vote

Las Vegas Review-Journal ^ | July 14, 03 | Las Vegas Review-Journal

[churchillbuff]

LAS VEGAS REVIEW-JOURNAL

U.S. District Judge Philip Pro temporarily restrained the action by which the Nevada Assembly passed a tax bill with less than a two-thirds vote. He ordered an en banc hearing with all district judges for 9 a.m. Wednesday in Reno and Las Vegas.

The Assembly voted 26-16 Sunday for a bill that would increase taxes by a record $788 million over the next two years.

Today, Republican lawmakers, citizens and business groups -- upset with Thursday's decision by the state Supreme Court rejecting the two-thirds vote requirement to pass taxes -- filed an action in U.S. District Court seeking to block the court's ruling.

Assembly Minority Leader Lynn Hettrick, R-Gardnerville, said the federal action is necessary because the 6-1 Supreme Court ruling allowing only a simple majority to raise taxes is unconstitutional.

"We don't believe the court's decision that we can ignore the constitution is legal," he said.

[chance33_98]

It appears, from a casual reading anyway, That two issues were examined, the 2/3's vote and a const. amd. stating that there had to be a budget passed by July 1. July 1 has come and gone, ruling on that one would not work too well. They cannot force the legislature to vote a particular way to come up with 2/3, so options are running low. If they quash the July 1 deadline, they are overturning a law, if they do away with the 2/3 they are doing the same thing.

The questions remain though, and many of them for me: Will the 2/3 stand only until July 1 each year, after which it will require a simple majority? What remedy was in the State Const. for the budget battle going beyond that date?

When two seperate laws run head on into each other (or two parts of same law as case may be) then the courts have to step in and look at it. The legislature in this case has already ignored the part which stated July 1 was the deadline - perhaps they themselves should be fined $1000/day per person until they solve it :)

[Principled]

The questions remain though, and many of them for me: Will the 2/3 stand only until July 1 each year, after which it will require a simple majority?

Indeed this is evil. Dems will simply delay until the deadline is passed every year.

IMO the court should not change the required majority, but should, as you say, fine legislators daily. They'll come to an agreement, pronto. If they don't, they get big fines and lose their jobs too.

[Lancey Howard]

A believer in states' rights would say that the Nevada Supreme Court has the ultimate authority to interpret the laws of Nevada. The proper course for Nevadans to take after this miscarriage of justice is to kick their Supremes out of office through political means.

Or, as some on this thread have suggested, by means of firearms.

Although I generally agree with you about states' rights, there are times when the damage done to the citizenry is far more than a "miscarriage of justice". What we are clearly seeing in Nevada is corruption at the highest level of government. The Nevada Supreme Court has been coopted in some way, perhaps with threats or, more likely, with bribes. Then again, maybe the education mafia has some devastating dirt on a few of them.

In any event, Nevadans, if they are not quite over the edge enough to take matters into their own hands (as the founders, with the Second Amendment, anticipated could someday be necessary), then they should certainly not have to go throught the ardous process of political remedy. Big government wants to start confiscating their money NOW, and so there should certainly be a course of action available which is much quicker than the "political process".

[David]

Well I get a private mail from ontos-on suggesting a justiciable federal issue--hopefully he is right. On balance, my own guess is that however outrageous this looks; state supreme court decides a clearly adopted state constitution provision is inapplicable or overriden by some other provision; clearly wrong; there is no violation of the federal constitution and no justiciable issue for the federal courts.

In many respects, this is really what happened in the Bush v. Gore appeal to the US Sup Ct--Florida court issues a clearly wrong partisian opinion contrary to state law. Supreme Court ultimately constructs a federal right it founds was violated.

In the Bush-Gore case, it is an effort by the Florida court to determine the outcome of the most important national election by dictating how the Florida electors will vote--federal court just could not let them do that.

Case at hand, only the Nevada citizens and electors get screwed--Sucks to live in Nevada. Maybe the voters in Nevada need to get it together to change control of their government. If they can't do that, too bad.

The legal answer is that the US constitution restricts state action only if it violates specific prohibitions in the US constitution. A state supreme court construction of the state constitution is only going to get reversed by the US Sup Ct if it violates some provision of the US Const. and you don't find that here.

[TheConservator]

Ok, I read the plaintiff's complaint and brief.

Unfortunately, this case is going nowhere. It lacks the requisite "hook" to permit the federal courts to assert jurisdiction.

Plaintiffs have two theories. The first is that the SCONEV's decision dilutes the votes of individual legislators and or voters.

The problem with this theory is that it proves too much. Under the principle advanced by the plaintiffs, there isn't a procedural dispute concerning the enactment of a state law that wouldn't be subject to review in federal courts.

What I think the federal judges will say is that SCONEV has the final word on what the state constitution says, and what should happen if there is a need to reconcile two (allegedly) conflicting state constitutional provisions. As long as the state constitution, as interpreted by SCONEV, is followed, there is no federal "vote dilution" claim.

Second, the plaintiff's claim a violation of Article IV, wherein the Constitution requires the feds to guarantee the states a republican form of government.

The problem here, as the plaintiffs acknowledge in their brief, is that the SCOTUS early on (I think maybe in reference to Shay's rebellion) held that that provision was "non-justiciable"--that is, was directed at and could only be enforced by Congress, not the federal courts.

The plaintiffs invite the Court to create an exception to the general rule of non-justiciability. The Nevada Federal District Court will decline. That invitation is properly directed only to the SCOTUS--the court that articulated the rule in the first place.

My prediction--after the en banc hearing, the restraining order will be dissolved.

FWIW, I read the SCONEV decision as well, and think SCONEV's reasoning is ludicrous. They basically held that the two provisions of the state constitution--the one requiring that the state fund education, and the other requiring a 2/3rds vote to increase taxes--were inconsistent with each other and could not be reconciled. Therefore, they threw out the 2/3 vote requirement.

That reasoning fails in two ways. First, the two provisions are by no means inconsistent. The Court couuld easily have devised a remedy that respected both provisions. For example, the Court could have ordered the legislators to be locked in until they passed a budget by a 2/3rds vote, required the budgets presented to appropriate increasingly less money until a budget garnered the required 2/3rds vote, etc.

Second, even if one were to accept that the two provisions were not consistent, it should have been the educational provisions that got invalidated. Under normal rules of statutory construction (or constitutional construction, which is the same thing), the more recently enacted provision should prevail. In addition, the Nevada constitutional provisions respecting education are in fact not all that strongly worded (in contrast with other state constitutions with which I am familiar, which, unlike the Nevada constitution, do explicitly say things like "It is the paramount duty of the State to provide for education.").

The Bottom Line--SCONEV issued a ridiculous, result-oriented decision. But the federal courts should find they have no power to correct it. If you are a Nevada voter, your remedy lies at the ballot box. Recall those damn judges, or at least vote them out of office at the next election!

[Principled]

The Supreme Court of the United States has expressly recognized that a state legislator has a federal cause of action to challenge actions by the state legislature that dilute or render nugatory the legislator’s vote. In Coleman v. Miller, 307 U.S. 433, 438 (1939)...

From their brief. The legislators' votes are being diluted and rendered nugatory. Hence fed action. Prec listed. But it is not clear to me that their votes are being diluted by the "legislature".

Nugatory....I had to look that one up!

[Principled]

If you are a Nevada voter, your remedy lies at the ballot box. Recall those damn judges, or at least vote them out of office at the next election!

Yep.

Thank you for your thoughtful contribution to the thread.

I just don't see how nevada folks will stand for a court simply raising their taxes. How will they get it back? Who do they talk to about that?

There will be trouble in Nevada if this stands, IMO. Folks don't like being railroaded - and without any opportunity to stop it. I predict trouble.

[TheAngryClam]

The executive was the one seeking this, though.

[ontos-on]

Will the 2/3 stand only until July 1 each year, after which it will require a simple majority?

No. this is where it goes crazy. The 2/3 requirement and hte July 1 requirement are not incompatible in principle, so there is no way that "after July 1" the 2/3 requirement expires. That kind of reading is just silly--it's klike not even trying. They both stay in force. The time requirement was violated; so sanction those who violated it, if that is wanted. But that fact has no relation to the 2/3 requirement. there is no ocntingnet relation between the two. It is a sad commentary on the lack of education in the country that they could keep straight faces while doing such brutality to logic.

[ontos-on]

Will the 2/3 stand only until July 1 each year, after which it will require a simple majority?

No. this is where it goes crazy. The 2/3 requirement and hte July 1 requirement are not incompatible in principle, so there is no way that "after July 1" the 2/3 requirement expires. That kind of reading is just silly--it's klike not even trying. They both stay in force. The time requirement was violated; so sanction those who violated it, if that is wanted. But that fact has no relation to the 2/3 requirement. there is no ocntingnet relation between the two. It is a sad commentary on the lack of education in the country that they could keep straight faces while doing such brutality to logic.

[bruinbirdman]

" If you are a Nevada voter, your remedy lies at the ballot box. "

When I lived in California we did just that with the Bird Court. Now that I live in Nevada, I guess we have some more work to do. I am getting to feel like Ward Connerly.

yitbos

[Principled]

What recourse do nevadans have to protect their money from this (and future unbounded increases) if this stands? If this stands, would it not also be the case that the SC of nevada could declare that any "undesireable" (in thier eyes) law be null and void?

If they can declare part of the constitution null and void, why not other parts? or the whole thing?

What's to stop them???

[dufekin]

What about impeaching the state Supremes? Sounds like they deserve it. And time to vote in some legislators and governor who are a little less tax-friendly, eh?

[Principled]

What about impeaching the state Supremes?

Sounds good. What's required to do that?

Of course, the SC can simply declare the law allowing their impeachment to be invalid.

Egads. What's a citizen to do?

[SauronOfMordor]

I'm glad the fed judge did this, but how does he have jurisdiction in matters of nevada law?

US Constitution, Article 4, Section 4: "The United States shall guarantee to every state in this union a republican form of government".

The Federal govt as a positive, explicit duty to guarantee that no state shall be taken over by a dictatorship, whether that dictatorship takes the form of a corrupt party machine deciding it can ignore elections, or a bunch of black-robed judges thinking they can ignore their state Constitution

The Feds have an explicit, Constitutional duty to step in in cases like this, where the explicit will of the people of the State is being defied by those who pretend to act under color of law

[Principled]

see #105...

thoughts?

[SauronOfMordor]

A believer in states' rights would say that the Nevada Supreme Court has the ultimate authority to interpret the laws of Nevada. The proper course for Nevadans to take after this miscarriage of justice is to kick their Supremes out of office through political means.

A state supreme court that declares the plain language of the state Constitution invalid, can just as easily declare any motion to remove them as invalid.

The ultimate power DOES NOT rest with the court -- it must rest with the people

[Principled]

A state supreme court that declares the plain language of the state Constitution invalid, can just as easily declare any motion to remove them as invalid.

This is the obvious. If they can do this, they can "declare" any damn thing they please (in Nevada, anyway).

[SauronOfMordor]

I believe in constitutional rights. I believe that the Nevada Supreme Court has the authority to interpret the laws (including the Constition) of Nevada. Those on the other side of the fence do not believe that the Nevada Supreme Court should be the ultimate authority in interpreting Nevada's laws.

And if the Nevada Supremes issue a ruling that they are the absolute dictators-for-life of Nevada, and that no attempt to remove or impeach them is constitutional? If you believe they are the "ultimate authority in interpreting Nevada's laws", how would you challenge that?

If they can ignore the plain language of the Constitution, then my scenario versus their recent ruling is only a matter of degree. A minor matter of degree

[goldstategop]

Impeach The SCON Seven! And yes, what they did WAS illegal! God bless Lynn Hetrick and the lower house Nevada Republicans telling the Democrats and RINOs to take their tax increase and shove it where the sun don't shine!