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.

[Dont Mention the War]

Any idea how the Federal Court determined jurisdiction?

Isn't it the federal government's job to intervene when a state government is usurping the most fundamental rights of its own citizenry?

[Principled]

CARSON CITY, Nev. (AP) – The state Supreme Court ruled Thursday that Nevada’s constitutional requirement that tax increases be approved by a two-thirds vote of the Legislature must give way to another constitutional mandate – to adequately fund public education.

[Principled]

“We order the Legislature to fulfill its obligations under the Constitution of Nevada by raising sufficient revenues to fund education while maintaining a balanced budget,” Chief Justice Deborah Agosti wrote.

[blackdog]

The slippery slope of judicial activism coming to your jurisdiction soon.

My gut check on all the judicial insanity of late tells me just one thing. That being that lobbyists no longer need to waste their time on those silly legislative bodies. No matter what goes on legislatively, the fix is to just spend your lobbying dollars on the judiciary directly. I mean why bother with a legislature at all? I've felt that way for quite some time now.

[Principled]

While the Legislature approved a budget that has been signed into law, it has been unable to muster a two-thirds majority required to pass a tax plan to pay for it.

[Mr. Lucky]

the action of the state Supreme Court was clearly wrong, if not idiotic, and maybe, given that this is Nevada, even corrupt. But upon what grounds does the federal court arrogate to itself the authority to enjoin deliberations by a state legislature?

[ontos-on]

does feds have jsd? Yes, if the state citizens are denied their own fundamental rights such as "rule of law" which is a federal constitutional right to "ordered liberty" under the 14 th Amendment to the federal constitution. I hope that that is the way the plaintiffs (state republicans) framed th eissue is in applying for the stay [or injunciton] which was granted today.

Essentially, when you are the victim of judicial activism run amok, as here, you have your federal constituional right to ordered liberty destroyed. If the state supreme court is overturned on those federal constitutional grounds, that would be great. Otherwise the judicial activists have enacted tyranny in Nevada.

[Dont Mention the War]

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

Same reason the SCOTUS dealt a KO to the SCOFLA in 2000, I guess. States' rights go out the window when the state is oppressing its people on such a fundamental level, IMHO. But then, I'm not a lawyer.

[YoungKentuckyConservative]

The law is not as it seems, these days. Simple enough. Re-interpret the law and you can make it mean anything...so long as Americans continue to be the apathetic, pathetic wussies they have proven to be. On to slavery, gentlemen.

[Dr Warmoose]

Isn't it the federal government's job to intervene when a state government is usurping the most fundamental rights of its own citizenry?

No, that is what your Remington 870 is for.

[TheAngryClam]

Probably not. That's what I'm curious about.

However, since there's a federal injunction, there's obviously a federal lawsuit. The pleading will have stated how the plaintiffs believed that it was a federal matter, so we can try and track that down.

Additionally, as I said, federal courts are empowered to enforce proceedings to determine their jurisdiction, and that includes injunctions and orders. I suspect that this injunction came from that, since without one, if the court determined that it had jurisdiction, there would be irreparable harm to the parties.

Just a guess. Time to go find that pleading. Anyone know the case name or docket number of the federal case?

[Principled]

Found something published.

In one of the purest exercises of democracy known to man, the people of Nevada in 1996 passed Question 11 -- a measure proposed by former Assemblyman (now U.S. Rep.) Jim Gibbons of Reno which requires a two-thirds supermajority vote of both houses of the Legislature to raise our taxes -- by a whopping majority of 70 percent to 30.

[Dont Mention the War]

“We order the Legislature to fulfill its obligations under the Constitution of Nevada by raising sufficient revenues to fund education while maintaining a balanced budget,” Chief Justice Deborah Agosti wrote.

Of course, "sufficient funding" is whatever Little Debbie decides it should be, even if it makes balancing the budget MATHEMATICALLY IMPOSSIBLE.

I think the Legislature should start by taking the money earmarked for daily operations of state courthouses - power, air conditioning, security - and divert all of THAT to the education budget.

[TheAngryClam]

Here's a partial answer: the suit against the justices alleges a violation of Due Process. Reading the brief for the other suit now.

Source AP News Report

[David]

"Well, you better pray to God that we take care of this little problem, because if we don't any law in the US can be overturned."

Well not so fast (no pun on your name intended). State Supreme court is probably the final judge of this issue. Correct reading of the state constitution by the state court? Probably not. Do you have a federal constitutional or other right that the state court correctly apply the state constitution? Probably don't have that either.

At some point, people who want to enjoy the blessings of liberty need to stand up and address directly the abrogation of our system of constitutionally limited government.

The single legitimate argument to elect George II in my view was the power of appointment over the U S Supreme Court. So far, he has not effectively exercised that power yet (no vacancies yet either). The next real threat to our system comes when Hillary wins in 2004 and appoints a bunch of Souters, Briers, andsoforths to the US Court. All of our rights will then disappear. What then?

[blackdog]

I find it hard to think that the Nevada constitution uses the phrase "to adequately fund public education"?

It may say "to fund", but I would not think it would address adequacy issues? I mean adequacy is a purely amorphous goal.

The mandate of adequacy in my bank statement is directly at odds with my mandate to adequately feed, clothe, and shelter my family. I can do that in an apartment with maccaroni and cheese or I can do that in a mansion with filet mignion and Perrier. Both could be deemed adequate while one runs $700 per month and the other runs $7000 per month. I guess I should go find a judge to find out which is best huh?

[Ken H]

Any idea how the Federal Court determined jurisdiction?

It should be on the basis of 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."

Now, whether any Court would rule according to what the Constitution clearly says is another question.

[TheAngryClam]

Here are the plaintiffs' briefs. I'll look them over, but I'm trying to give freepers a play-by-play.

[Principled]

“The Gibbons Tax Restraint Initiative is doing what it was designed to do and that is to keep bad ideas from getting passed,” said Rep. Jim Gibbons, R-Nev., whose tax restraint initiative was approved overwhelmingly by voters in 1996."

Reno Gazzette, today.

[TheAngryClam]

From the brief, establishing the federal cause of action:

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), the Supreme Court held that state legislators “have a plain, direct, and adequate interest in maintaining the effectiveness of their votes.” At issue in the case was whether, in voting to ratify a federal constitutional amendment, the lieutenant governor of the state was permitted to cast a vote in the event of a tie. As the Court noted, “the twenty senators [who were petitioners in the case] were not only qualified to vote on the question of ratification but their votes, if the Lieutenant Governor were excluded as not being part of the legislature for that purpose, would have been decisive in defeating the ratifying resolution.” Id. at 441; cf. Skaggs v. Carle, 110 F.3d 831, 833 (D.C. Cir. 1997) (noting that “the harm worked by [a rule changing the amount of votes necessary to pass legislation]—diluting the Representatives’ votes and diminishing their ability to advocate a position—is apparent, as is the command of the Constitution that we remedy that harm”).

Although Coleman involved a federal constitutional amendment, several courts, including the Ninth Circuit, have recognized that a State legislature’s failure to comply with its own procedures may violate federal Due Process. See, e.g., Rea v. Matteucci, 121 F.3d 483, 485 (9th Cir. 1997) (quoting Atkins v. Parker, 472 U.S. 115, 130 (1985)); Conway v. Searles, 954 F. Supp. 756, 767 (D. Vt. 1997). “Fairness (or due process) in legislation is satisfied when legislation is enacted in accordance with the procedures established in the state constitution and statutes for the enactment of legislation,” Richardson v. Town of Eastover, 922 F.2d 1152, 1158 (4th Cir. 1991), not by legislation enacted in violation of the procedures mandated by the state constitution, as here. “Legislative rules are judicially cognizable, and may therefore be enforced by the Courts.” Conway, 954 F. Supp. at 769 (citing Yellin v. United States, 374 U.S. 109, 114 (1963); Christoffel v. United States, 338 U.S. 84 (1949)). Moreover, the Supreme Court has expressly suggested, albeit in dicta, that members of state legislative bodies have standing to bring a vote dilution claim that arises from violations of state law. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544 n.7 (1986) (“if … state law authorized School Board action solely by unanimous consent,” a disenfranchised school board member “might claim that he was legally entitled to protect ‘the effectiveness of [his] vot[e]’”) (quoting Coleman, 307 U.S. at 438) (brackets in original). A legislator in such circumstances “would have to allege that his vote was diluted or rendered nugatory under state law,” and “he would have a mandamus or like remedy against the Secretary of the School Board.” Id. The hypothetical case described in Bender is identical to the case here. State law— Article 4, § 18(2) of the Nevada Constitution—authorizes legislative action on tax increases “solely” by 2/3 vote. The disenfranchised legislators—the Legislator Plaintiffs in this case who together provided enough votes to defeat the tax increase pursuant to the 2/3 vote requirement of Article 4—can and do claim that they are legally entitled to protect the effectiveness of their vote. They have alleged in their complaint that their vote was diluted or rendered nugatory under state law, and they have sought to enjoin the clerk of the Assembly and the Secretary of the Senate, among others, from certifying as passed a bill that did not receive the necessary 2/3 vote. Under the provisions of the Nevada Constitution, the vote a member of the State Assembly is 1/15 of the votes necessary to defeat a tax increase. Under the procedure employed by the Assembly yesterday, an assemblyman’s vote was only 1/21 of the votes necessary to defeat a tax increase—a classic case of vote dilution, in violation of the Due Process clause.