CONSTITUTIONAL SHOWDOWN

In 1996, Nevada voters amended the State Constitution to require a two-thirds vote of both houses of the legislature to pass any bill increasing taxes.   After two special sessions, on July 1, 2003, Governor Guinn sued the legislature in the state supreme court, asking for an order to force the legislature to fund education.   

Justice A. William Maupin issued the lone dissent to the majority’s ruling. “(T)he 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,” he wrote.

Tim Sandefur, a fellow in the College of Public Interest Law at the Pacific Legal Foundation, which filed an amicus curiae brief in the case, agreed with Maupin: “The Court erased an entire clause of the state’s constitution--a clause added by the people in two separate elections, by overwhelming majorities.” 

There were many arguments that the decision was unconstitutional:

1. Legislatures can't be ordered to pass bills.  Courts have routinely held that legislatures cannot be forced to pass bills.

2.  The lawsuit violates the principle of separation of powers.   The Nevada Supreme Court in Galloway v. Truesdell 1967, declared the separation of powers to be "the most important single principle of government declaring and guaranteeing the liberties of the people...There can be no liberty... Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be the legislator:  Were it joined to the executive power the judge might behave with all the violence of an oppressor."

3.  In Clinton v. New York the Court explained that  when the Constitution sets forth "a single, finely wrought mechanism" for passing bill, the legislature cannot seek ways to get around the procedure.

4.  A classic rule of legal interpretation hold that the later-enacted provision are considered over the earlier - the two-thirds being the later and the education the earlier provision.

5. The Wall Street Journal noted that the court had "ordered state legislators to violate the state constitution they have sworn to uphold."

6.  In 1992, the US Supreme  Court held that the Republican Guaranty might be violated if a sudden and undemocratic change in state law were to pose a "realistic risk of altering the form or the method of functioning of a state's government." 

7.  It dilutes the vote of the people and the legislators who represent them violating the 14th amendment.

Dr. John Eastman was asked to take the case referred to as Angle vs the Legislature to Federal Court and on to the US Supreme Court.  John Eastman, director of the Claremont Institute Center for Constitutional Jurisprudence and professor of law at Chapman University School of Law, questioned the court’s conclusion that the Nevada constitution contains substantive education guarantees. “The Nevada Constitution mandates that the state support one school in each district for six months per year--a minimal constitutional obligation that was easily met by the existing funding.”   

 “There are at least four centuries of traditional common law protections for the Legislature’s right to decide when to tax or not to tax the people,” he noted. “But rather than reining in their spending appetites, Governor Guinn and the majority of the State Legislature wanted to tax the people even more. When they found that they didn’t have the votes, they simply decided to change the rules, and the Court went along. The whole point of having a Legislature and Constitutional procedures is so that you don’t have arbitrary rule.”

“Usually, when government does something rash, the proper solution is a political campaign. But in this case, the non-political branch made a sudden and undemocratic change in the clear governing procedure of the state, and in the process violated Nevadans’ right to have their votes count and to have their Constitution obeyed,” commented Sandefur.

Tax increases may not be the only unpleasant outcome from the Nevada supreme court’s decision. Eastman fears something more important is at stake: “Constitutional government, and the right of the people to government by consent, is in peril.”

We the People of Nevada is asking for your help to Save our Constitution.   The cost for this case to go through the Federal Courts to the US Supreme Court is $150,000.    So far the Legislators who voted against the taxes reflecting the will of the people and upholding their oath to protect the Constitution are paying the bill.   They need your help.Make checks payable to:We the People PAC or Angle v the Legislature  (These checks are not reported on the Secretary of States Website as contributions.)   PO Box 33058   Reno, NV 89533 

For more information go to the following websites: www.heartlant.org www.nevadasupremecourt.org www.wethepeoplenevada.org www.sharronangle.org http://www.claremont.org/projects/jurisprudence/0030714nevada.html

Taxes, Education Clash in Nevada

Author: Chris Atkins
Published: The Heartland Institute 11/01/2003

The state of Nevada is in the midst of a constitutional tug-of-war pitting Silver State taxpayers against the state’s education bureaucracy. For the moment, the state’s top court has given the edge to the bureaucracy.

The conflict stems from the inability of Governor Kenny Guinn to secure a tax increase to pay for his school spending plan. The state constitution requires that the state fund education ... and it also requires a two-thirds supermajority in each house to pass tax increases. While the Governor was able to persuade the legislature to pass the education budget earlier in the Spring, he could not garner enough votes to raise the taxes to pay for it.

After two special sessions, Guinn sued the legislature in the state supreme court, asking for an order to force the legislature to fund education.

“(T)he Legislature has failed to comply with the mandatory, non-discretionary provisions of the Nevada Constitution requiring it to fund education and balance the budget,” Guinn said in a brief filed with the court.

On July 10, by a 6-1 vote, the state supreme court obliged and went one step further, ordering the legislature to pass a tax increase by a simple majority vote instead of the two-thirds required by the constitution. It reasoned, among other things, that the substantive education provisions of the state constitution should be given more weight than the procedural supermajority requirement.

“The two-thirds supermajority provision, as passed, created the potential for an absolute budgetary stalemate in the Legislature,” the majority ruled in Guinn v. Legislature. “[J]udicial resolution of the constitutional conflict was necessary, so that the Legislature could perform its constitutionally mandated duties.

“To avoid an impasse harmful to public education,” the court continued, “we held that the Legislature could suspend the supermajority rule in favor of a vote by simple majority ... in order to fulfill its obligations to fund education and balance the budget.”

Also in a 6-1 ruling, the court declined on September 17 to rehear its decision.

Carole Vilardo, executive director of the Nevada Taxpayers’ Association, was disappointed with the court’s decision. “Denying the rehearing was not a surprise to me, but it was a disappointment, particularly in light of the fact that in the original decision they provided a remedy that had not been asked for.”
Dissenting Opinion

Justice A. William Maupin issued the lone dissent to the majority’s ruling. “(T)he 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,” he wrote.

Tim Sandefur, a fellow in the College of Public Interest Law at the Pacific Legal Foundation, which filed an amicus curiae brief in the case, agreed with Maupin: “The Court erased an entire clause of the state’s constitution--a clause added by the people in two separate elections, by overwhelming majorities.”

John Eastman, director of the Claremont Institute Center for Constitutional Jurisprudence and professor of law at Chapman University School of Law, questioned the court’s conclusion that the Nevada constitution contains substantive education guarantees. “The Nevada Constitution mandates that the state support one school in each district for six months per year--a minimal constitutional obligation that was easily met by the existing funding.” An attorney, Eastman represented 15 legislators who petitioned the Nevada Supreme Court to re-hear the case.

The sufficiency of education funding is the purview of the legislature, said Eastman, not the courts. “Prioritizing between education and other governmental services is the essence of legislative decision-making,” he explained.

Sandefur agreed with Eastman’s separation of powers concerns. “There are at least four centuries of traditional common law protections for the Legislature’s right to decide when to tax or not to tax the people,” he noted. “But rather than reining in their spending appetites, Governor Guinn and the majority of the State Legislature wanted to tax the people even more. When they found that they didn’t have the votes, they simply decided to change the rules, and the Court went along. The whole point of having a Legislature and Constitutional procedures is so that you don’t have arbitrary rule.”

Dangerous Precedent

The legislators represented by Eastman sought reconsideration of the decision because of the dangerous precedent its ruling could set for Nevada and other states.

In California, which has education and supermajority constitutional provisions similar to Nevada’s, the state superintendent of public instruction has already threatened a similar lawsuit because of the budget stalemate in Sacramento.

“I cannot in all good conscience stand by and watch political conflict disrupt the education of the children of California,” said Superintendent Jack O’Connell. “While the circumstances in Nevada were clearly different than what we are facing here in California, the heart of the argument that funding education ought to take precedence over a procedural requirement rings true.”

California managed to pass a budget before O’Connell’s threatened lawsuit commenced, but the threat gave credence to concerns that the precedent set in the Nevada case could extend beyond that state’s borders.

“Usually, when government does something rash, the proper solution is a political campaign. But in this case, the non-political branch made a sudden and undemocratic change in the clear governing procedure of the state, and in the process violated Nevadans’ right to have their votes count and to have their Constitution obeyed,” commented Sandefur.

Tax increases may not be the only unpleasant outcome from the Nevada supreme court’s decision. Eastman fears something more important is at stake: “Constitutional government, and the right of the people to government by consent, is in peril.”

Chris Atkins is director of tax and fiscal policy for the American Legislative Exchange Council.

For more information ...

The full text of the Nevada supreme court’s decision in Guinn v. Legislature is available through PolicyBot. Point your Web browser to http://www.heartland.org, click on the PolicyBot icon, and search for document #13337.

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