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.

[Principled]

Many of your previous posts indicated you desired federal courts to interpret Nevada law.

No they didn't. Find it.

Make sure you're careful. I never said that.

It was your preconceived notions that changed what I said into something else.

Please be more careful reading and ensuring you're not overly ambitious looking for a combatant before posting.

I do not want the Feds intepreting Nevada law... never have, never will. I never posted such. Never.

I am, however, hopeful for the Feds to find a federal issue to which they may respond.

IMO this cannot pass; there have been many opinions here that indicate that indeed the state legislators do have standing in a federal court.

Please be more careful reading.

[Principled]

As I stated, elsewhere on the thread, some people were drawing similarities to Bush v. Gore.

I did not post anything about Bush v. Gore, so I am not certain why you would have addressed this to me. Perhaps it was meant for another poster.

[Core_Conservative]

Anybody want to read the Decision of the Court Case it is here http://www.leg.state.nv.us/scd/119NevAdvOpNo34.pdf

[Principled]

From posr #20:

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

See post 89 for how the judge could do it WITHOUT interpreting Nevada law.

Again, I do not want feds interpeting state law. That would be stupid. That you would assert such is, well, you know.

I want a federal issue to be ruled on; and some have been found. No fed judge needs interpret Nevada law, only the US Constitution.

[steveegg]

Why do you think that the court ruled that the 2/3 majority could be excepted rather than ruling otherwise (eg legislators fined until agreement or some such). Was it only because the court didn't hear contrary argument?.

There was precious little reasoning in the majority decision (both the decision and the partial dissent are available in both HTML and PDF formats). From what I've been able to decipher, the Gang of 6 SCONs saw this as a conflict solely between the "specific, substantiative" requirement to fund education and the "procedural" requirement that 2/3rds of the legislature must agree to raise taxes. The SCON took it upon themselves to go beyond the requested relief from Governor RINO (an adomition to the Legislature to change a sufficient number of votes to get his precious big tax increase) and instead granted a relief suggested by the teachers' unions.

The "logic" employed by the Gang of 6 is best captured by this quote from an earlier SCON case (decided by the same members): "We must give words their plain meaning unless doing so would violate the spirit of the provision." (emphasis added). I can see no precedent-setting prohibition against making the "simple majority" now called for 40%, 33% or, in the most-extreme case, even 1 vote in either house in the future to raise taxes. The only limitation that the SCON gave itself (at least for now) was that it couldn't unilaterally impose a tax increase or spend money.

I find it odd that only the partial dissent mentions any alternative to this particular rewriting of the Nevada constitution. It mentions a proposed relief offered by several legislators that would have forced the governor to allow the legislators to reconsider the rest of the budget. However, the justice rejected it as that would have violated the separation of powers clause of the constitution (the setting of the agenda of a special session is constitutionally-defined as being the sole province of the governor). He also notes, after dismissing the "budget repair" remedy, that there is still significant waste in the budget. As for the rest of that particular opinion, he disagrees with the Gang of 6 only as to the timing of the remedy.

Have they not opened pandora's box in that whenever dems want more $, they simply delay until after the July 1 deadline to reduce required majority? If 50% + 1 says they need 573 trillion for education, the budget will not get passed by the 2/3...july one passes, and the 2/3 requirement would be circumvented...

You figured out this game. All it takes, for now, is a tax-increasing governor and a simple majority of the legislature. However, I can easily see the SCON extending it to compel a lean-thinking legislature unable to override a tax-increasing governor's veto of a trim budget to pass the bloated budget and tax increases.

[Principled]

Yes, this should be stopped. It is clear and obvious that a wrong is being committed.

How to remedy the wrong without doing another wrong is the question. It wouldn't be appropriate for Fed judges to read state law. But there is likely a fed issue here, as has been noted. Republican gov't guaranteed and a diluting of the legislators' votes are both federal issues allowing the feds in.

Regardless, impeachment by the people is somehow necessary. If the folks of Nevada can get enough sigs, can they oust them without legislators' assistance?

[steveegg]

How to remedy the wrong without doing another wrong is the question. It wouldn't be appropriate for Fed judges to read state law. But there is likely a fed issue here, as has been noted. Republican gov't guaranteed and a diluting of the legislators' votes are both federal issues allowing the feds in.

Those would be my hooks. Now, if the Nevada constitution had an explicit provision to let the SCON pick and choose which portions of the constitution apply when, neither of those hooks would exist.

Regardless, impeachment by the people is somehow necessary. If the folks of Nevada can get enough sigs, can they oust them without legislators' assistance?

Yes. That would take 25% of those who voted in the election that brought each of the justices to their current term in the SCON. There is no apparent applicable time limit to this process, but it can only be attempted once per term.

[larlaw]

While I'm an attorney here in Nevada, this decision has nothing to do with the law or the Nevada Constitution and everything to do with politics. There isn't even an attempt by the Supreme Court to try and reconcile this decision with 227 years of settled Constitutional jurisprudence in this country.

The two biggest special interests in this state, who are also the largest contributors to political AND judicial races are the Gamers (casino owners) and the Unions. Usually, but not always, the gamers support the G.O.P. although they also play both sides of the fence. The unions, and especially the teacher's union, always supports the Dems. However, in his reelection bid in 2002, Our RINO Governor Guinn cut a deal with BOTH the gamers AND the unions for their support. He GOT both of them, and a result had NO major party opposition. (Little known and under-funded African American State Senator Joe Neal).

In return, however, our Governor obviously cut a back room deal to increase taxes on Nevadans to fund higher spending for the unions, paricularly on education as a payback to the teacher's union, and yet also spare the casinos a large gaming tax increase. (And keep in mind that the casinos benefit from the cheap immigrant labor and their large families that have caused our health and education budget to become to out of proportion to tax receipts in the first place). So what we got in our legislature was a proposal for major new taxes to fall disproportionately on taxpayers and on non-gaming businesses, including a horrific "gross receipts tax" on all companies that do business here.

Keep in mind that these SAME special interests are the ones who will be contributing to the re-election campaigns of the SCON Justices who came down with this decision. So the Supreme Court Justices lined up with the big gamers, the unions, as well as our RINO Governor and big spending Democrats to try and ram through this massive tax increase against the will of the people, represented by a minority of Assembly Republicans who have had the guts to stand firm.

[Principled]

Do you see feds getting involved? If so, what's the federal issue and how do you see it playing out?

We're all so interested in what happens, it could mean so much if courts can willy nilly decree stuff.

[larlaw]

Unfortunately, I think it is unlikely the feds will choose to overturn the Nevada Supreme Court. Yes, I understand and agree with the arguments made by those on this thread that the SCON was completely without authority in its ruling; The Federal issues involve the meaning and nature of the U.S. Constitutional dictate requiring states to enact a "republican" form of government, as well as the 14th amendment entitling every citizen to "due process" of laws. By this decision the Nevada Supreme Court violated said due process protections by effectively barring citizens from amending their own state constitution;

However, keep in mind that we in Nevada reside in the Clinton/Carter appointment dominated U.S. Ninth Circuit Court of Appeals. If the local District Judges, generally moderate to conservative in their leanings, who are sitting en banc on this hearing on Wednesday were to reverse the Nevada Supreme Court, an appeal would immediately be undertaken by the RINO Governor to the tax-friendly, judicial activist 9th Circuit. As such, forseeing a likely reversal and a very unlikely U.S. Supreme Court intervention, I think the U.S. District Court Judges will ultimately choose to refrain from deciding that the Nevada Supreme Court has acted beyond its authority, relying on the grounds that this was a state court interpreting its own state constitution.

That being said, what the U.S. District can and hopefully will do in the interim that might be beneficial is to at least extend the current Temporary Injunction, and clarify it to allow the State legislature to continue to operate under the old 2/3 majority rule until the District Court holds a hearing on the merits of the Nevada Supreme Court action.

What that would do as a practical matter is to put significant pressure on the legislature and the Governor to forge a compromise that can gain 2/3 majority, since the political pressure would be ratcheted up (The education establishment will be screaming for funding). If the Court were to so decide, all parties concerned will have incentive to compromise, and if an agreement can be reached then the effect of this outrageous SCON decision will have been blunted as its constitutionality will at least arguably still be in question without any ruling on its constiutionality by the federal courts.

[Principled]

What that would do as a practical matter is to put significant pressure on the legislature and the Governor to forge a compromise that can gain 2/3 majority...

Why so, if they can just wait it out? From where will the pressure come?

[larlaw]

The pressure will come from the general public who, I suspect, is finally awakened from its slumber, and more particularly the education establishment;

The school districts will run out of money as of August 1; Without budget funding by the legislature, they will be unable to finalize recruitment of the requisite number of out of state teachers that were supposed to begin teaching here the end of August; They will further be unable to do all of the re-assigning and enact the programs that they had planned for; The teacher's union will be apoplectic; However, as such, I suspect the Dems and Governor will be the ones likely to cave, agree to a smaller tax increase (without the gross receipts tax) and some spending cuts, and allow for the education budget to be passed, thus alleviating the "crisis"...

[Principled]

Will there be a similar "crisis" next year, and the next, etc?

I think so. I'm concerned about it spreading elsewhere.

[larlaw]

If this decision stands, instead of their being a "crisis" in Nevada and in other states a liberal Governor can instead just petition his State Supreme Court and ask them to basically change the budgetary rules, since education is a constitutional "priority" and therefore must take precedence over any other "procedural" rules. This ruling will alter the balance of power and should scare every conservative - the slippery slope of Court-mandated taxes is well within sight (As it already is in some other states - and imagine the mischief if Gray Davis had the Rose Bird Court to turn to for help in his budgetary troubles... or if Florida had a liberal Governor who could turn to his corrupt state Supreme Court to effectively ignore the state constitution and impose taxes by decree.

For those who don't realize it yet, this case will resonate FAR beyond Nevada, as other state courts can use this precedent to justify THEIR unconstitutional usurpation of power.

[Principled]

...this case will resonate FAR beyond Nevada, as other state courts can use this precedent to justify THEIR unconstitutional usurpation of power

Yes, this is why I want to learn more.

Short term, I bet the Nev leg will fight back...at least I hope so.

[goldstategop]

Sure... let's make an exception to all procedural niceties. Why bother having a Constitution and protecting minority rights and so forth? We're ending up with the tyranny of the majority, exactly as Alexis De Tocqueville feared. Only its being foisted upon the people by liberal judges who think such considerations should fall by the wayside when they interfere with the advancement of the liberal agenda.