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

[Principled]

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!

Tell me more! Can they stop it somehow?

[steveegg]

Do you have a federal constitutional or other right that the state court correctly apply the state constitution? Probably don't have that either.

It depends on both the "due process" clause in the 14th Amendment (IMHO, a shaky one, but then again, I'm not a lawyer) and the interpretation of this little gem from Article IV:

Section 4. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

It can be argued that, by amending Nevada's constitution in a manner wholly inconsistent with the procedures outlined in same, the SCON has introduced a non-republican (small "r") form of government to Nevada.

[goldstategop]

Nevadans should get off their rear ends and draft a measure abolishing judicial review. The SCON cannot simply be trusted to exercise it properly. Final say about validity of the laws should left up to the legislature and the sole duty of the courts should be to administer the laws on the books. Its irrelevant if they think a law is right or wrong since that is empathically a political judgment. We don't want our lives run by black robes drunk on power.

[steveegg]

Should I even be using the term SCONEV?

Just wait (though I prefer SCON myself for obvious reason)

[goldstategop]

Yes, impeach the entire Nevada Supremes and remove them from office and override their decision by making judicial review histoire.

[Principled]

How long to impeach them? Surely not until AFTER the tax has been raised....

[Principled]

How long to impeach them? Surely not until AFTER the tax has been raised....

And what is the process? 2/3 of legislators?

[Principled]

dang it
dang it

[ontos-on]

well, the political process appears to have fallen down there. This GOP governor is the monkey wrench. He appears to be just as radical as the furthest left. So, vote em out. Impeach the supreme court. Appeal to the federal court on the basis that there are fundamental federal rights that are being abridged by state action.

But your question seems to posit that this "will stand".

That is like saying what to do when the dictator takes over. "Kill him" .....if every legitimate redress is ruled out by the left in their fanasy of judicial tyranny. The left loves to claim to have checkmated people. But they are not in favor of self awareness--that is their fatal weakness. >

[cdrw]

I can't add any value to the educated legal opinions on this thread but ... I will throw in my two cents about the state of affairs in Nevada.

1) If the legislature is faced with the prospects of such dramatic tax increases then the voters should toss them all. It appears that Nevada has, as have many other states, ratcheted up their budgets during boom times to unsustainable levels and they are now holding education hostage to avoid cutting all the pork programs they got passed. Sure - as if all the budget increases over the past six years went into education.

2) Sounds like its time for a little "Nevada Tea Party" to take place on the steps of the SCONEV. I completely agree with the previous poster who suggested the legislators should have been locked in session (I would add armed guards) until they did their job.

The legislature has failed miserably in its responsibilities and then the court failed miserably to "check" them and, instead, stepped in to do the job for them. Big mistake.

[Congressman Billybob]

The posts above have adequately addressed this point. I add only this: the US Constitution is the "supreme Law" as it says in its text. And in the Supreme Court decision of Six Unnamed Agents, it recognized that plaintiffs have a right of action based solely on a direct violation of their constitutional rights. They do not have to have a federal statute to base their action on, if they can show a direct constitutional violation.

The only problem with a federal court resolving the violation of the Nevada Constitution by its own Supreme Court, is this: Such a federal trial court decision will not only be correct, it will also be necessarily a criticism of the US Supreme Court decisions in recent cases, when it did the same thing as the Nevada court, namely trample on the plain language of the Constitution under which it sits.

I hope for a correct decision. But there will be hell to pay when that decision arrives on the doorstep of the US Supreme Court.

Congressman Billybob

Latest article, now up FR, "Fear and Loathing in the Supreme Court."

[ontos-on]

You do not think that a state legislator's vote is being nullified when, instead of his vote not to approve a specific tax hike provision meaqning that fully 2/3 of the other legislators have to approve the provision, it is now the case that only 51% of his legislative colleauges are needed to overcome his vote of his oppostion to the tax hike. That is clearly nullification, or at least dilution of his vote, by action of the legislature passing the tax hike provision with only 51%. The significance of his NO vote has been diluted and nullified--by the legislature voting ot pass the tax hike by majority vote contra the 2/3 requirement ofthe constitution.

This is self-evident to me.

[steveegg]

For the record, there's actually 4 portions of the Nevada constitution playing against each other here:

• The 2/3 rule for any tax increase (except if the voters agree by a majority vote in a general election before the increase takes effect; the next one is in November, 2004)
• The requirement that the state's general funds cover whatever portions of school spending other constitutionall-specified funds (also collected by the state) doesn't through direct appropriation (that means that it's not it doesn't automatically happen) with no proviso of adjustment by the state once the local districts submit their budgets (that shoots down the "cut the school budget" idea)
• The requirement that the state operate with a balanced budget
• The agenda for any legislative special session (which they are in as they already burned through the constitutional 120 days) is set solely by the governor (who refuses to allow anything other than the massive tax hike)

The first disbursement to the schools is due on August 1 by law. The legislature passed (and I presume Governor RINO signed) a sufficient amount of spending to guarantee that once the education funding was approved, that taxes would go up $788 million over the next 2 years. Governor RINO steadfastly refuses to allow the legislature to revisit the budget, and all 7 "justices" agree.

[steveegg]

When a state court invalidates a clearly-written portion of that state's constitution without having explicit authority to do so (and I find none in Nevada's constitution), it ceases to be bound by the protection of "states' rights". Morever, the action causes the government to become non-republican in nature. Seeing that Article IV, Section 4 says that the federal government guarantees that each state has a republican form of government, I seem to see a federal "hook" here.

That "hook" does not preclude the removal of the SCON, though I'm sure that they'll find a reason to exempt themselves from any recall effort.

[reg45]

I said exactly the same thing in another thread on the same subject.

[steveegg]

Even a recall would take too long. Once a sufficient number of signatures (25% of the number of voters who voted in the election of each member - oddly, there is apparently no time limit on the collection of signatures), the subject of a Nevada recall has 5 days to resign, then a special election is held within 30 days of that (thereason for recall is printed on the ballot, the winner is whoever gets the most votes - majority be damned).

Of course, considering that the SCON would find a way to make themselves immune to recall, it's all academic.

[ontos-on]

I am a lawyer and I beleive that you are right both on the 14th amendemnt and the article IV points. Actually I have been saying this from the beginning on this thread. I do not see where David gets the idea that we do not have this right in ordered liberty substantive due procees and ordered liberty withequal protection of the laws. This is the 14th qamendment to the federal constitution made direectly applicabel to the states in their actions towards US CITIZENS.

[Principled]

You do not think that a state legislator's vote is being nullified when...

Oh, I think they're being nullified, to be sure. The wording, however, indicated that the legislature had to be the diluting party. In our case, it seems that the SCONEV is the diluting party...hence my question.

[steveegg]

I'd just tell Ms. Justice Agosti to try to enforce it. Does she have an army?

In a manner of speaking, yes. The side she ruled for is the executive, and I believe that Nevada has a state police department AND the National Guard under its control.

[steveegg]

This GOP governor is the monkey wrench.

That's a nomination for "Understatement of the Year". There is a reasonable possibility that if he were to allow the legislature to revisit the rest of the budget, they could find enough to cut to get all the spending in without a tax increase.

As for impeachment, with a majority of at least one house of the legislature on the tax train and 2/3rds of both houses required for impeachment, that's not an option. However, recall is (at least until the SCON decides it's recall-proof).