Petition for rehearing of Governor v. Nevada
State Legislature, 119 Nev. ___, 71 P.3d 1269
(2003).
Petition dismissed; opinion clarified.
MAUPIN,
J., dissented.
Brian
Sandoval, Attorney General, and Jeff E. Parker,
Solicitor General, Carson City, for Petitioner
and Counter-Respondent.
Brenda
J. Erdoes, Legislative Counsel, Carson City; Hale
Lane Peek Dennison & Howard and N. Patrick
Flanagan III, Reno, for Respondent Nevada State
Legislature.
Allison,
MacKenzie, Russell, Pavlakis, Wright & Fagan,
Ltd., and Mark E. Amodei, Carson City, for Respondents
Terry Care and Mark E. Amodei.
Kathleen
J. England, Las Vegas, for Respondent Morse Arberry,
Jr.
Barbara
E. Buckley, Carson City, in Proper Person.
Beckley
Singleton, Chtd., and Daniel F. Polsenberg and
Beau Sterling, Las Vegas, for Counter-Petitioners.
Jeffrey
S. Blanck, General Counsel, Washoe County School
District, Reno; Walther Key Maupin Oats Cox &
LeGoy and Michael E. Malloy, Reno, for Amicus
Curiae Washoe County School District.
Dyer,
Lawrence, Penrose, Flaherty & Donaldson and
Michael W. Dyer, Carson City, for Amici Curiae
Nevada State Education Association, Clark County
Education Association, Education Support Employees
Association of Clark County, and Washoe Education
Association.
Ellsworth
Moody & Bennion, Chtd., and Keen L. Ellsworth,
Las Vegas, for Amicus Curiae Nevada Congress of
Parents and Teachers Association.
C.
W. Hoffman Jr., General Counsel, Las Vegas, for
Amicus Curiae Clark County School District.
Law
Offices of Thomas D. Beatty and Thomas D. Beatty,
Las Vegas, for Amici Curiae Clark County Association
of School Administrators, Washoe County Education
Administrators, and Nevada Association of School
Administrators.
McCracken
Stemerman Bowen & Holsberry and Richard G.
McCracken, Las Vegas, for Amici Curiae Nevada
State AFL-CIO and Nevada State Employees Association,
AFSCME, Local 4041.
McDonald
Carano Wilson LLP and John J. Laxague, Michael
A. T. Pagni, Jeffrey A. Silvestri and Thomas R.C.
Wilson II, Reno, for Amici Curiae Nevada Taxpayers
Association, Associated Builders and Contractors-Sierra
Nevada Chapter, AGC Nevada, Nevada Association
of Mechanical Contractors, Sierra Chemical Company,
Polymer Plastics Corporation, Barth Electronics,
EDAWN/ Western Nevada Development Authority, Nevada
Consumer Finance Corporation, Nevada Petroleum
Marketers and Convenience Store Association, Cal-Neva
Franchise Owners Association, 7-Eleven Franchise
Owners Association of Southern Nevada, Nevada
Resident Agents Association, Monte L. Miller and
Joshua C. Miller, Nevada Bankers Association,
Nevada Manufacturers Association, Nevada Motor
Transport Association, Retail Association of Nevada,
Tiberti Fence Company, Carson City Chamber of
Commerce, Las Vegas Chamber of Commerce, Nevada
Franchised Auto Dealers Association, Nevadans
for Real Tax Fairness, Household International,
Nevada Corporate Headquarters – Cort Christie,
Robert List, Henderson Chamber of Commerce, Thomas
Powell, Pic-Mount Imaging, Corp., Phoenix Holdings
of Nevada, Inc., Nevada Association of Independent
Businesses, Chain Drug Council of Nevada, and
Grocery Industry Council of Nevada.
Thomas
J. Ray, General Counsel, Las Vegas, for Amicus
Curiae University and Community
College System of Nevada.
James
T. Richardson, Reno, for Amicus Curiae Nevada
Faculty Alliance.
Layne
T. Rushforth, Las Vegas, for Amicus Curiae Nevada
Concerned Citizens.
Wilson
& Barrows and Stewart R. Wilson, Elko; Gregory
T. Broderick, Sacramento, California, for Amicus
Curiae Pacific Legal Foundation.
BEFORE
THE COURT EN BANC.
OPINION
PER
CURIAM:
On July 10, 2003, we entered an opinion in this
matter partially granting the Governor’s
petition for a writ of mandamus and denying the
counter-petition filed by twenty Legislators.
Our opinion directed this court’s clerk to
issue a writ directing the Legislature “to
proceed expeditiously with the 20th Special Session
under simple majority rule.” The
impetus for the writ petition, and our opinion,
was the Nevada Legislature’s continued failure
to appropriate funds for the K-12 school system
and to balance the state’s budget by providing
an adequate revenue plan to defray the state’s
estimated expenses for the biennium beginning
July 1, 2003.
On July 21, 2003, the counter-petitioners filed
a rehearing petition, asking us to recall our
writ of mandamus, reconsider our opinion, and
grant one of the remedies suggested in the counter-petition.
Later that same day, the Legislature fulfilled
its constitutional duties to fund the public school
system and balance the budget, and it adopted
the revenue-raising legislation required to balance
the budget by a two-thirds supermajority.
According to the Legislature,
The Court’s ruling in
this case facilitated a shift from the tension
that was caused by an externally-imposed requirement
to achieve a 2/3 consensus, to a situation where
the legislators were internally motivated to achieve
a 2/3 consensus voluntarily. This shift
in perception allowed reevaluation of fixed positions
which led expeditiously to the passage of Senate
Bill No. 8 . . . .
The counter-petitioners then supplemented their
rehearing petition and moved this court to withdraw
its opinion. At our direction, the Governor
and Legislature responded to the rehearing petition.
Assemblyman Arberry filed a supplemental response.
Amici Curiae Education Associations[1] and the
Pacific Legal Foundation also filed responses.
Counter-petitioners filed a reply.
The Legislative stalemate
that was thrust upon us was the result of a recent
Nevada constitutional amendment requiring a two-thirds
majority to pass legislation that creates, generates
or increases any public revenue, including taxes.
The Senate had passed legislation that would have
completed the budget process, but the Assembly
had deadlocked and could not garner the necessary
two-thirds vote because of a difference of opinion
among Assembly members over the role the two-thirds
provision played in the budget process. The
deadlock prevented the Assembly from funding the
K-12 appropriations bill and balancing the budget.
We concluded, based on the calamitous circumstances
facing our state, that the Legislature could proceed
with the 20th Special Session under a simple majority
requirement, given that the dispute over the two-thirds
majority requirement’s applicability to the
budget process had prevented the Legislature during
one regular and two special sessions from fulfilling
its constitutional duties to appropriate funds
and to maintain the public school system while
balancing the budget. Accordingly, we granted
the petition as to the Legislature as a body,
but denied the petition as to the individual legislators
and the Lieutenant Governor. We also denied
the counter-petition, which requested us to determine
that the two-thirds supermajority provision applied
not only to increases in revenue, but to the budget
itself.
BACKGROUND
The Nevada Constitution has, since it was enacted,
required that bills and joint resolutions be passed
by a simple majority of each house. Article
4, Section 18(1) originally provided that “a
majority of all the members elected to each house
is necessary to pass every bill or joint resolution.”[2]
In 1993, a member of the Legislature sponsored
a resolution that proposed amending the Constitution
to require a two-thirds majority of each house
to increase certain existing taxes or impose new
taxes.
At a hearing on the proposed resolution, legislators
asked one of the main proponents if the other
states with similar provisions required a supermajority
to approve the state budget as well as new taxes,
or if these states retained a simple majority
for budget approval and a supermajority for funding.[3]
Legislative members pointed out to the proponent
that the proposed amendment did not address the
budget, only changes in revenue. Thus the
Constitution, if amended, would require a two-thirds
majority to change the existing revenue structure,
but only a simple majority to approve the budget.[4]
The members noted that once the budget is approved,
the Nevada Constitution requires that revenue
be increased to balance the budget where the cost
of services exceeds projected revenue.[5]
Finally, the legislators expressed their concerns
that the proposed language would create the potential
for a constitutional crisis because a minority
of legislators might disagree with the majority’s
lawfully approved budget and therefore refuse
to consider any revenue increases until their
budgetary concerns were met, thus creating a deadlock.
The amendment, according to one legislator, “was
actually empowering a smaller group of people
not to fund the budget.”[6] The legislators
were concerned that the process would allow a
minority of the Legislature, representing a minority
of this State’s citizens, to control public
services, contrary to the wishes of a majority
of the Legislature, representing a majority of
the citizens.[7]
The proponent did not answer the questions posed
by other legislators, but indicated that the issues
would be researched and additional information
would be provided to committee members.[8]
The record does not reflect whether additional
information was provided, and the Legislature
declined to approve the proposal.[9] The
proponents then took the proposal directly to
Nevada’s voters through the initiative process.
Unfortunately, the initiative
petition and proposed amendment did not resolve
the conflict discussed in the legislative hearings.
Although the initiative’s proponents were
aware of the potential conflict that could result
from requiring a simple majority for appropriations
and a supermajority for new or increased public
revenue, they did not specifically address this
problem in the initiative’s language.
Nor did the arguments for and against passage,
presented in the voter information and sample
ballot pamphlet, discuss the issue or the effect
the proposal could have on other constitutional
rights or the state’s overall fiscal integrity.[10]
Nevada’s voters passed the constitutional
amendment in the 1994 and 1996 general elections.[11]
Consequently, Nevada’s Constitution, in Article
4, Section 18(2), now requires a two-thirds vote
of each house “to pass a bill or joint resolution
which creates, generates, or increases any public
revenue in any form, including but not limited
to taxes, fees, assessments and rates, or changes
in the computation bases for taxes, fees, assessments
and rates.” But the initiative did
nothing to the constitutional mechanism for passing
the underlying appropriations bills,[12] which
requires only a simple majority vote under Article
4, Section 18(1). Thus, the stage was set
for legislative impasse.
As noted in our prior opinion, the Nevada Legislature,
which currently meets only every other year for
an abbreviated 120-day regular session,[13] adequately
functioned within the new constraints in the 1997,
1999 and 2001 sessions. Then, the state
had a budget surplus and the budget could be balanced
without major tax increases. By 2003, however,
the state’s economic situation had changed
drastically.
The impact of terrorism, economic recession and
increases in population caused the Governor to
begin the 2003 legislative session with a $980
million request for new revenue to balance his
proposed budget for the 2003-2005 biennium.
The revenue request was based on the need to cover
revenue shortfalls caused by the downward trend
in Nevada’s economy after the terrorist attacks
of September 11, 2001, and increased expenses
relating to terrorism, growth and changes mandated
by federal laws. Over the four-month regular
session, the proposed budget was reduced by approximately
$135 million. However, philosophical differences
still permeated the final days of the regular
legislative session. Consequently, by the
June 3 conclusion of the 2003 regular session,
the Legislature did not complete its constitutional
duty to approve a balanced budget, but it appropriated
$3,264,269,361 for various government functions
and the Governor signed these appropriations into
law.[14]
The Legislature further failed in its constitutional
duty to appropriate funds for Nevada’s public
school system.[15] This funding dilemma
apparently resulted from a confluence of factors,
including the abbreviated nature of the regular
legislative session; the need to address the comprehensive
mandates of the new Federal No Child Left Behind
Act;[16] and policy disagreements between the
Senate and Assembly in regard to consolidating
certain childhood educational programs, implementing
class-size reduction programs, earmarking money
for textbooks and other instructional materials,
and encouraging experienced teachers to work in
at-risk schools or schools designated as needing
improvement and, of course, the revenue shortfalls.
On June 3, 2003, the Governor convened the
19th Special Session of the Legislature to appropriate
funds for public education and to provide a tax
plan sufficient to pay for the state’s services
and balance the final budget.[17]
On June 6, 2003, the Senate
passed Senate Bill 2 to authorize and appropriate
the State Distributive School Account (SDSA) in
the general fund for the fiscal years beginning
July 1, 2003, and July 1, 2004. But Senate
Bill 2 lacked the votes necessary to pass the
Assembly, because the passage of the bill, without
a revenue plan, would violate the balanced budget
provisions of the Constitution. Certain
Assembly members insisted that the two-thirds
requirement applied to the budget as well as the
tax structure. These individuals argued
that the Governor should expand the special session
to include all components of the budget and that
the budget process be reopened so cuts in services
as well as tax increases could be considered in
reaching a balanced budget.
Because the majority of the Legislature did not
agree with this interpretation and the request
to reopen the budget process, no progress on finalizing
and balancing the budget was made and public schools
remained unfunded. Consequently, on June
12, 2003, the Governor adjourned the 19th Special
Session as requested by the Senate Majority Leader
and the Speaker of the Assembly.
With no end to the stalemate in sight, the Governor
convened the Legislature that same day for a second
special session (the 20th Special Session) to
begin on June 25, 2003.[18] On the first
day of that session, the Senate unanimously passed
Senate Bill 5 to authorize and appropriate the
SDSA, and transmitted the legislation to the Assembly.
In addition, the Senate, by the constitutionally
mandated two-thirds majority, passed tax measures
that provided a balanced budget for the 2003-2005
biennium, Senate Bills 2 and 6. Once again,
Senate Bill 2 was not passed out of the Assembly.
Assembly members sought, however, to amend Senate
Bill 6 to incorporate the SDSA authorization and
appropriations and provide sufficient taxes to
balance the budget. But faced with renewed
demands that the budget be reopened for cuts in
spending, the Assembly twice failed to pass the
amended bill by the required two-thirds majority;
both votes were 27 to 15, one vote shy of the
constitutionally mandated supermajority.
The Governor, who is responsible for ensuring
that Nevada’s laws are faithfully executed[19]
and for submitting a proposed state budget to
the Legislature,[20] filed a petition for a writ
of mandamus at the start of the fiscal year, July
1, 2003, seeking to compel the Legislature to
fulfill its constitutional duties by funding K-12
public education and passing a balanced budget.
The Legislature, in its official response to the
petition, asserted that a writ should not issue
because no dispute existed over the interpretation
of the Constitution and the Legislature simply
needed more time to come to a consensus.
The Legislature indicated, through counsel, that
the plain language of the Constitution required
a simple majority to pass the budget, while the
supermajority provisions only applied to a specific
proposal to increase, change or create taxes,
not the total amount of revenue to be generated.
The Legislature reached this conclusion using
standard rules of constitutional construction.
In its answer, the Legislature indicated that
its construction was the only way to harmonize
the simple majority provision for the budget with
the supermajority provision for taxes and the
constitutional requirement that revenues shall
be raised to balance a budget. According
to the Legislature, when a legislative majority
approves a budget, it does so with full knowledge
of the revenue projections and the Constitution’s
mandatory balanced budget provisions. As
the Legislature noted, when an approved budget
exceeds the projected revenues, the Constitution
requires that revenues be raised to balance the
budget. By approving the budget, the majority
has already decided that the expenditures for
services embodied in the budget are necessary
and that revenue must be increased to provide
for them. Thus, the majority decides whether
additional revenue is necessary and the total
amount of revenue that needs to be raised to balance
the budget. The manner in which revenues
will be raised, that is, the specific changes
in the tax structure, then requires supermajority
approval.
However, a minority of legislators disagreed with
the official response. They filed a separate
answer and counter-petition. The counter-petition
sought to compel the Governor to call a special
session to consider and make cuts to the entire
state budget and requested this court to hold
the supermajority provision applies to the budget
process whenever a budget requires revenue increases.
The counter-petitioners acknowledged that a substantial
tax increase was necessary; however, they disagreed
on the gross amount of the increase. The
issue, according to these legislators, was not
whether there would be a tax increase, but the
necessity of a particular amount. Each scenario
envisioned a several hundred million dollar tax
increase. The impasse continued even though
the writ petition was pending. The Legislature
recessed at the call of the majority leaders of
both houses.
This unprecedented crisis arose because of the
two antagonistic constitutional provisions with
which the Legislature is saddled. Article
4, Section 18(1) requires only a simple majority
to enact appropriations bills, but Article 4,
Section 18(2) requires a supermajority to generate
or increase public revenue to fund those appropriations.
That these provisions occupy antagonistic positions
was apparent from the various respondents’
conflicting interpretations. The counter-petitioners
argued that the supermajority provision for generating
public revenue trumps Section 18(1)’s requirement
that all other bills, including appropriations,
be passed by a simple majority whenever the appropriations
call for a tax increase. According to these
legislators, the general appropriations bill,
passed by a majority of the Legislature, was void
because it was not passed by a two-thirds supermajority.
The respondent Legislature, on the other hand,
asserted that the minority legislators' interpretation
frustrates the plain language of Section 18(1).
According to the Legislature, “it is evident
that [the supermajority] provision does not require
a two-thirds vote in regard to a legislative measure
which appropriates money, but which does not actually
create, generate, or increase public revenue.”
Faced with these differing views on the supermajority
requirement’s application, it became our
task, as the ultimate custodians of constitutional
meaning, to balance Sections 18(1) and 18(2) so
as to preserve and credit both clauses to the
maximum extent possible.[21]
In construing the Constitution, our primary objective
is to discern the intent of those who enacted
the provisions at issue, and to fashion an interpretation
consistent with that objective.[22] However,
when the enactors’ intent cannot be determined,
rules of constitutional construction require us
to attempt to harmonize differing provisions so
as to give as much effect as possible to each
provision.[23] We look beyond the plain
language of constitutional provisions to ascertain
intent “when a construction is urged which
would result in an absurd situation”[24]
or when provisions are subject to conflicting
interpretations.[25]
The language of Article 4, Section 18(1) and Article
4, Section 18(2) is clear on its face. But
in operation, the two provisions resulted in legislative
paralysis in one general and two special sessions.
The parties advanced conflicting interpretations
of the provisions’ requirements. We
thus looked to extrinsic evidence surrounding
the supermajority provision’s enactment to
determine its intended effect.
As mentioned earlier, Article 4, Section 18(2)
originated as Ballot Question 11 during the 1994
and 1996 general elections. The supermajority
requirement was intended to make it more difficult
for the Legislature to pass new taxes, hopefully
encouraging efficiency and effectiveness in government.
Its proponents argued that the tax restriction
might also encourage state government to prioritize
its spending and economize rather than explore
new sources of revenue. But neither the
ballot question nor its explanation in the voter
pamphlet informed voters of the likelihood of
legislative paralysis and its effect on the state’s
fiscal and educational integrity. Indeed,
even the initiative’s prime sponsor was unsure
of the consequences of reposing within a small
group of legislators the power to block majority-approved
appropriations. And, in 1993, he represented
to the Assembly that the supermajority requirement
“would not hamstring state government or
prevent state government from responding to legitimate
fiscal emergencies.”[26]
The voters were not privy
to the Assembly’s concerns that culminated
in the requirement’s legislative rejection,
and the requirement’s proponents failed to
address those concerns when presenting the initiative.
Because the voters were not informed
of the problems the amendment would cause
if a minority of legislators disagreed with the
majority over the level of services to be provided
to Nevada citizens, we could not determine how
the voters intended to resolve such a conflict.[27]
We were persuaded that the Legislature’s
view of the Constitution’s plain language
was correct. A simple majority is necessary
to approve the budget and determine the need for
raising revenue. A two-thirds supermajority
is needed to determine what specific changes would
be made to the existing tax structure to increase
revenue. Consequently we rejected the counter-petitioners’
interpretation and dismissed the counter-petition.
However, our dismissal of the counter-petition
could not, standing alone, resolve the impasse.
While we could direct the legislators to proceed
with their constitutional duties to pass a balanced
budget and fund education, we had no ability to
enforce the order. Under the separation
of powers doctrine, individual legislators cannot,
nor should they, be subject to fines or other
penalties for voting in a particular way.[28]
Additionally, we could not, nor did we, direct
the Legislature to approve any particular funding
amount or tax structure.[29] This does not
mean, however, that no other remedy exists to
resolve a constitutional crisis created by the
Legislature’s inability, as a whole, to fulfill
its constitutional obligations. In this
instance, the minority's refusal to accept the
majority’s duly passed budget decisions meant
that the constitutional requirements to fund public
education and balance the budget remained unfulfilled.
In his initial pleadings, the Governor cited to
law in other jurisdictions with similar educational
constitutional provisions. Courts of those
states had assigned high priority to these provisions
when their legislatures failed to fulfill their
constitutional duties to fund public education.
Some amicus briefs urged us to declare the two-thirds
majority requirement unconstitutional, as it interfered
with the Legislature's ability to fulfill its
duty to fund education and balance the budget.
At the very least, those amici urged the court
to suspend operation of the two-thirds requirement
in this session. Other amicus briefs argued
against this proposition. Because the impasse
was substantial, impairing educational functions,
and because we discerned that the supermajority
requirement was not created to avoid the Legislature's
constitutional duties to fund public education
and balance the budget, we considered these arguments.
When a court is faced with conflicting policies
arising out of multiple constitutional provisions
in a specific factual situation, it must, if it
can, strike a balance between the provisions.
Conflict avoidance and resolution measures employed
in First and Sixth Amendment jurisprudence demonstrate
this fact. For instance, tension is continually
present between the Establishment Clause and the
Free Exercise Clause of the First Amendment.[30]
One clause prohibits actions that might constitute
the establishment of religion, while the other
clause guarantees the right of all to be free
to follow their religious preferences. Rather
than rigidly enforce either provision, the United
States Supreme Court has found in the constitutional
machinery “play in the joints” in an
effort to strike a balance between them.[31]
This rejection of rigid constitutional doctrine
is necessary to honor the “transcendent value
of free religious exercise in our constitutional
scheme,” and extends, for example, “to
the extent of cautiously delineated secular governmental
assistance to religious schools, despite the fact
that such assistance touches on the conflicting
values of the Establishment Clause by indirectly
benefiting the religious schools and their sponsors.”[32]
Similarly, where freedom of the press[33] may
jeopardize a criminal defendant’s right to
a fair trial,[34] the High Court permits restrictions
on trial publicity.[35] The Supreme Court
has stated that “the right to an open trial
may give way in certain cases to other rights
or interests, such as the defendant’s right
to a fair trial or the government’s interest
in inhibiting disclosure of sensitive information.”[36]
In reconciling the competing provisions of Nevada’s
constitutional requirements to fund education
and balance the budget with the supermajority
requirements for changing the tax structure, we
believed that the appropriate analysis required
weighing the interests protected by each provision,
under the specific facts of this case, to determine
whether the net benefit that accrued to one of
those interests exceeded the net harm done to
the other.[37] The essential issue was whether
the supermajority requirement could be improperly
used by a few to challenge the majority’s
budget decisions, thereby preventing the Legislature
from performing its other constitutional duties.
The primary interest supported by permitting the
Legislature to suspend the supermajority requirement
in this case was nothing less than the constitutional
mandate to fund public education. The United
States Supreme Court fifty years ago stated:
[E]ducation
is perhaps the most important function of state
and local governments. . . . [Education]
is the very foundation of good citizenship.
Today it is a principal instrument in awakening
the child to cultural values, in preparing him
for later professional training, and in helping
him to adjust normally to his environment.
In these days, it is doubtful that any child may
reasonably be expected to succeed in life if he
is denied the opportunity of an education.[38]
This
statement is equally pertinent today. “No
other governmental service plays such a seminal
role in developing and maintaining a citizenry
capable of furthering the economic, political,
and social viability of the State.”[39]
Our State Constitution’s framers explicitly
and extensively addressed education,[40] believing
strongly that each child should have theopportunity
to receive a basic education.[41]
In addition, we were necessarily concerned with
the interest of preserving the democratic process.
A majority of legislators, representing a majority
of the citizens of this state, make decisions
on the services to be provided and the future
of the state. These include what programs
to provide for children, the disabled and senior
citizens; the construction and repair of roads
and streets; funding of agencies to protect our
citizens from telemarketing schemes or fraudulent
transactions; costs associated with law enforcement
activities; and staffing and location of state
offices to avoid delays or long distance travel
to obtain necessary documents such as drivers’
licenses, vehicle or corporate registrations.
Where these matters have been discussed and duly
voted upon, the Constitution requires that the
decision of the majority be respected.
Against public education,
the democratic process and fiscal interests, we
balanced the interests fostered by the supermajority
requirement. The two-thirds requirement
was intended, according to the information supplied
to the voters in the 1994 and 1996 elections,
to limit the influence of special interest groups,
ensuring that one group would not control changes
in the tax structure. The voter pamphlet
also indicated that the amendment might promote
more efficiency in government. These
interests are legitimate and important, but they
do not outweigh the need to fund education
or abide by the majority rule mandated by Article
4, Section 18(1). To avoid an impasse harmful
to public education, we determined that the supermajority
provision could not be improperly used to avoid
majority rule on budget appropriations.
Accordingly, we held that the Legislature could
suspend the supermajority rule in favor of a vote
by a legislative majority, in this very narrow
circumstance, in order to fulfill its obligations
to fund education and balance the budget.
Resolution of the impasse was entirely in the
hands of the Legislature. If the minority
abided by the Constitution and recognized that
majority rule controlled budget appropriations
issues and thus the need to generate an amount
of revenue, the impasse would end and the only
issue remaining, what changes to make in the revenue
structure to achieve a balanced budget, would
proceed by the two-thirds supermajority.
This is, in fact, what happened. After our
decision, the majority made concessions on the
budget. Although some legislators would
still have preferred additional cuts, they recognized
that the Constitution required them to abide by
the majority’s decision and move on to determine
how to balance the budget. Two-thirds of
the members of both houses of the Legislature
then approved the tax changes necessary to balance
the budget. Our opinion did not eliminate
the two-thirds requirement, but it did indicate
that the supermajority provision could not be
used to avoid other constitutional duties.
In the petition for rehearing, counter-petitioners
take an abrupt about-face on interpreting the
Nevada Constitution. For, although they
strenuously argued in their counter-petition that
the two-thirds supermajority provision necessarily
predominated over the simple majority provision
governing appropriations, and that the legislative
appropriations made during the regular session
were therefore void, they now argue, for the first
time, that a construction permitting one provision
to yield to another necessarily results in vote
dilution. Yet counter-petitioners’
proffered construction of the Constitution, if
followed, would also result in vote dilution,
according to counter-petitioners' own reasoning.
We do not reach these issues, however, because
we determine that the petition for rehearing became
moot when the Legislature passed the revenue-generating
bills by the requisite two-thirds vote.
We have consistently iterated that our duty “is
to decide actual controversies by a judgment which
can be carried into effect, and not to give opinions
upon moot questions or abstract propositions,
or to declare principles of law which cannot affect
the matter in issue before [us].”[42]
In this case, once the Legislature adopted revenue-raising
legislation by a two-thirds supermajority in order
to fund the public school system and balance the
state’s budget, the rehearing petition became
moot. And, although we recognize an exception
to the mootness doctrine for issues capable of
repetition yet evading review, the issues raised
in the rehearing petition are not subject to this
narrow exception.[43] As the United States
Supreme Court has noted, to evade review, the
challenged action must be too short in its duration
to be fully litigated before its cessation or
expiration.[44] If the Legislature were
to increase or raise taxes in the future under
simple majority rule, this court would have ample
opportunity to review that action.[45]
The two-thirds supermajority provision, as passed,
created the potential for an absolute budgetary
stalemate in the Legislature; that potential was
realized this year and has done significant damage
to public education. A judicial resolution
of the constitutional conflict was necessary,
so that the Legislature could perform its constitutionally
mandated duties. Our prior opinion did just
that. We dismiss the rehearing petition.[46]
**********FOOTNOTES**********
[1]
Nevada State Education Association, Clark County
Education Association, Education Support Employees
Association of Clark County and Washoe Education
Association.
[2]
Debates & Proceedings of the Nevada State
Constitutional Convention of 1864, at 837
(Andrew J. Marsh off. rep., 1866) [hereinafter
Debates & Proceedings].
[3]
Hearing on A.J.R. 21 Before the Assembly Comm.
on Taxation, 67th Leg. (Nev., May 4, 1993) (discussions
involving Assembly members James A. Gibbons, Larry
L. Spitler and Myrna T. Williams).
[4]
Id.
[5]
Id.
[6]
Id.
[7]
Id.
[8]
Id.
[9]
In answer to the question concerning minority
control, at least one state, Florida, has adopted
some flexibility in its supermajority tax provision.
Florida does not include money necessary to support
state bonds in the supermajority requirement and
permits increases when necessary to offset changes
in federal laws, such as Medicare, that impact
the state. Fla. Const. art. VII, § 1(e).
Oregon, with a legislature that also meets biennially,
allows its equivalent of Nevada’s Interim
Finance Committee to approve new programs and
revenue to support those programs when the legislature
is not in session, subject to retroactive approval
at the next session. Or. Const. art. III,
§ 3.
[10]
Compare Compilation of Ballot Questions
1996, Question No. 11, Arguments for Passage (stating
that "[i]t may be more difficult for special
interest groups to get increases they favor,”
and that it may require state government to prioritize
and economize), with id. Arguments
Against Passage (stating that “Nevada must
remain flexible to change the tax base”).
[11]
See Nev. Const. art. 19, § 2(4) (providing
that a constitutional amendment requires approval
of a majority of the voters at two general elections).
[12]
Nevada’s budget is composed of several separate
bills: the General Appropriations Act (funds
most state government); the Authorized Expenditure
Act; the bill appropriating funds to the State
Distributive School Account (funding K-12 education);
the Class-Size Reduction Act; the Capital Improvement
Bill (authorizing construction, maintenance and
repair of state buildings); and the Unclassified
Pay Bill.
[13]
Nev. Const. art. 4, §§ 2(1), 2(2). The 1997
session was not subject to the 120-day limitation,
as the limit was not approved by the voters until
1998.
[14]
All but three sections of this law took effect
on July 1, 2003. Two provisions took effect
on June 3, 2003, and one other will take effect
on July 1, 2004. 2003 Nev. Stat., chs. 327,
328 and 441.
[15]
Nev. Const. art. 11, § 6. Because the State
Distributive School Account is such a large component
of the general fund, difficulties concerning the
supermajority provision's application were certain
to arise with respect to public school funding,
no matter when addressed.
[16]
20 U.S.C. §§ 6301-7014.
[17]
Nev. Const. art. 5, § 9; id. art. 4, §
2(2).
[18]
At this point, the special sessions were reportedly
costing the taxpayers $50,000 per day.
[19]
Nev. Const. art. 5, § 7.
[20]
Id. art. 4, § 2(3).
[21]
See Marbury v. Madison, 5 U.S. 137,
178 (1803); State v. Rosenthal, 93 Nev.
36, 41, 559 P.2d 830, 834 (1977); Zaner v.
City of Brighton, 917 P.2d 280, 283 (Colo.
1996); Denish v. Johnson, 910 P.2d 914,
922 (N.M. 1996).
[22]
Nevada Mining Ass’n v. Erdoes, 117
Nev. 531, 538, 26 P.3d 753, 757 (2001); accord
In re Anthony R., 201 Cal. Rptr. 299, 302
(Ct. App. 1984).
[23]
Bowyer v. Taack, 107 Nev. 625, 627, 817
P.2d 1176, 1177 (1991); Ex parte Shelor,
33 Nev. 361, 375, 111 P. 291, 293 (1910).
[24]
Bussanich v. Douglas, 733 P.2d 644, 647
(Ariz. Ct. App. 1986).
[25]
See Soto v. Superior Court, 949
P.2d 539, 544 (Ariz. Ct. App. 1997); Utah School
Boards v. State Bd. of Educ., 17 P.3d 1125,
1129 (Utah 2001); cf. Cook v. Maher,
108 Nev. 1024, 842 P.2d 729 (1992) (resolving
conflicting constitutional interpretations).
[26]
Hearing on A.J.R. 21 Before the Assembly Comm.
on Taxation, 67th Leg. (Nev., May 4, 1993).
[27]
As we noted in our prior opinion, the initiative
measure included a provision that permits a majority
of the Legislature to refer any proposed new or
increased taxes for a vote at the next general
election. The voter information, however,
did not indicate that this language was included
to resolve a budget impasse. Nor could this
provision, Article 4, Section 18(3), realistically
resolve a budget impasse. As the Legislature
meets every other year in odd-numbered years for
only 120 days, and general elections are held
only every other year in even-numbered years,
the voters could not intervene for sixteen months.
See Nev. Const. art. 4, §§ 2(1), 2(2);
NRS 293.12755.
[28]
See Supreme Court of Va. v. Consumers
Union, 446 U.S. 719, 731 (1980); Gravel
v. United States, 408 U.S. 606, 616-18 (1972);
Yeldell v. Cooper Green Hosp., Inc., 956
F.2d 1056, 1062 (11th Cir. 1992).
[29]
Annotation, Mandamus to Members or Officer
of Legislature, 136 A.L.R. 677 (1942).
[30]
See Tilton v. Richardson, 403 U.S.
672, 677 (1971) (plurality opinion). A tension
exists because, as Justice Brennan once noted,
“There are certain practices, conceivably
violative of the Establishment Clause, the striking
down of which might seriously interfere with certain
religious liberties also protected by the [Free
Exercise Clause].” Abington School
Dist. v. Schempp, 374 U.S. 203, 296 (1963)
(Brennan, J., concurring).
[31]
Norwood v. Harrison, 413 U.S. 455, 469
(1973); Walz v. Tax Commission, 397 U.S.
664, 669 (1970).
[32]
Norwood, 413 U.S. at 469.
[33]
U.S. Const. amend. I.
[34]
Id. amend. VI.
[35]
Nebraska Press Assn. v. Stuart, 427 U.S.
539, 562 (1976) (quoting United States v. Dennis,
183 F.2d 201, 212 (2d Cir. 1950) (internal quotation
marks omitted)).
[36]
Waller v. Georgia, 467 U.S. 39, 45 (1984).
[37]
See Bender v. Williamsport Area School
Dist., 741 F.2d 538, 559 (3d Cir. 1984), vacated
on other grounds, 475 U.S. 534 (1986).
[38]
Brown v. Board of Education, 347 U.S. 483,
493 (1954).
[39]
Claremont School Dist. v. Governor, 703
A.2d 1353, 1356 (N.H. 1997).
[40]
See Nev. Const. art. 11, § 1 (“The
legislature shall encourage by all suitable means
the promotion of intellectual, literary, scientific,
mining, mechanical, agricultural, and moral improvements,
and also provide for a superintendent of public
instruction and by law prescribe the manner of
appointment, term of office and the duties thereof.”);
id. art. 11, § 2 (“The
legislature shall provide for a uniform system
of common schools, by which a school shall be
established and maintained in each school district
at least six months in every year . . . and the
legislature may pass such laws as will tend to
secure a general attendance of the children in
each school district upon said public schools.”);
id. art. 11, § 6 (“In addition to
other means provided for the support and maintenance
of said university and common schools, the legislature
shall provide for their support and maintenance
by direct legislative appropriation from the general
fund . . . .”).
[41]
See Debates & Proceedings, supra
note 2, at 567-72.
[42]
NCAA v. University of Nevada, 97 Nev. 56,
57, 624 P.2d 10, 10 (1981).
[43]
See, e.g., Langston v. Nevada, 110
Nev. 342, 344, 871 P.2d 362, 363 (1994).
[44]
Weinstein v. Bradford, 423 U.S. 147, 149
(1975).
[45]
We reject counter-petitioners’ attempt to
avoid the mootness bar under the exception that
voluntary cessation of unconstitutional conduct
will not prevent review. To the extent that
counter-petitioners suggest that the Legislature’s
passage of revenue-raising legislation constitutes
unconstitutional conduct, that suggestion is absurd.
And to the extent counter-petitioners assert that
the Legislature’s voluntarily ceased “unconstitutional
conduct” was passing revenue-raising legislation
by a simple majority vote, there was no such conduct.
[46]
We deny counter-petitioners'
motion to vacate as well as their emergency stay
motion.
*****************************
SHEARING,
J., concurring:
I would simply deny the petition for rehearing.
Rule 40(c) of the Nevada Rules of Appellate Procedure
sets forth the standards for the content of a
petition for rehearing as follows:
(1)
Matters presented in the briefs and
oral arguments may not be reargued in the petition
for rehearing, and no point may be raised for
the first time on rehearing.
(2)
The court may consider rehearings
in the following circumstances:
(i)
When the court has overlooked or misapprehended
a material fact in the record or a material question
of law in the case, or
(ii)
When the court has overlooked, misapplied
or failed to consider a statute, procedural rule,
regulation or decision directly controlling a
dispositive issue in the case.
This petition for rehearing is not appropriate
under any of these provisions. The petition
reargues matter previously considered and presents
new matter not previously argued. Petitioners
have not demonstrated to the court that the court
has overlooked or misapprehended any material
fact or material question of law. Neither
have the petitioners demonstrated that the court
has overlooked, misapplied or failed to consider
a statute, procedural rule, regulation or decision
directly controlling a dispositive issue in this
case. The petitioners are additionally requesting
new relief. Since the petition for rehearing
does not conform to the appropriate standards,
it must be denied.
I do not agree that it is appropriate, in responding
to a petition for rehearing, for this court to
attempt to answer public criticism of this court’s
decision or to criticize the constitution or laws
of this state. We must accept the duly enacted
constitution and laws of this state, whether they
are well advised or ill advised; the court’s
duty is to decide the cases brought before it.
Often that duty involves trying to reconcile provisions
that, in practical application, produce results
that are incompatible with one another.
The court has accomplished that reconciliation
in this case. That should end the matter.
*****************************
MAUPIN,
J., dissenting:
The rehearing petition in this matter should be
granted, the writ of mandamus dissolved and the
prior majority opinion vacated. First, the
Nevada State Legislature completed its work without
resort to the remedy afforded by this court in
the writ. It ultimately complied with the
Nevada Constitution as written by appropriating
funds for the state educational system and creating
the new revenue sources to pay for the appropriations
by a two-thirds vote.[1] Second, the perceived
crisis the majority sought to address in the writ
was averted by the legislative action just mentioned.
Third, the majority now indicates that the original
decision had discrete application to the limited
circumstances of the 2003 legislative sessions;
thus a need for precedent for future sessions
does not exist. Accordingly, the entire
matter is moot.
I most strongly take issue with the court’s
comments on rehearing that the supermajority initiative
was flawed from its inception and that the Nevada
electorate twice approved it without an understanding
that a stalemate between appropriations and taxes
could eventuate. The initiative was vetted
through two elections and we should not from this
vantage point presume to say what the voters of
this state knew or did not know. In any
case, the potential for such a conflict was inherent
in the proposal and the people of this state had
every right to make it more onerous for the Legislature
to create new revenue streams for the operation
of government. Nothing in this constitutional
construct prevents the Legislature from crafting
a balanced budget and, as noted, the Legislature
ultimately complied with the super-majority requirement.
We need look no further than the second paragraph
of the Declaration of American Independence for
sustenance in any judicial analysis of initiative
petitions passed by a vote of the people:
We hold
these truths to be self-evident, . . . [t]hat
. . . governments are instituted . . . , deriving
their just powers from the consent of the governed . .
. .
This
court did not invalidate the tax initiative as
somehow being unconstitutional. Having thus
affirmed its basic validity, we must recognize
that such initiatives, however inconvenient to
the operatives of government they may be at times,
represent the ultimate form of citizen consent
to government. Accordingly, it is not for
us, the supreme court of this state, to criticize
the wisdom of a valid initiative embraced by an
overwhelming majority of Nevadans.
I am therefore of the belief that we should, in
response to the petition for rehearing, vacate
the writ of mandamus and the prior opinion issued
in aid of it.
**********FOOTNOTES**********
[1]
The Nevada State Constitution requires that the
State Legislature appropriate sufficient funds
to support and maintain the public school system;
that it provide for sufficient revenues to balance
the state budget; and that any increases in taxes
to fund the state budget be approved by a supermajority
of both houses of the legislature. See
Nev. Const. art. 11, § 6; id. art. 9, §
2(1); id. art. 4, § 18(2). The writ,
as noted by the majority on rehearing, allowed
the 2003 Legislature, in special session, to create
new funding sources by a simple majority rather
than a supermajority to resolve an impasse in
arriving at a balanced budget that existed as
of July 10, 2003.
*****************************
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