Sunday, December 28, 2003
Copyright © Las Vegas Review-Journal

VIN SUPRYNOWICZ: 'Trying to restore constitutional government'

Last time, we were detailing the legal actions still continuing on behalf of anti-tax-hike legislators and others who have challenged the Nevada Supreme Court's monstrous "Guinn v. Legislature" decision in the federal courts.

(The infamous July 10 decision instructed the Legislature to ignore the Nevada Constitution's supermajority requirement for raising taxes, even though more than enough of the state's record-breaking tax revenue remained unallocated to meet the constitution's only education funding mandate -- that the state fund one, six-month school per county.)

Dr. John C. Eastman, director of the Claremont Institute Center for Constitutional Jurisprudence, professor of law at Chapman University School of Law -- and former law clerk to U.S. Supreme Court Justice Clarence Thomas -- will file briefs in the ongoing case before the 9th Circuit in San Francisco on Jan. 12, and will file separate briefs seeking direct U.S. Supreme Court review of this dangerous decision on Jan. 20.

After Dr. Eastman's dinner speech to about 100 local supporters of the lawsuits at Texas Station on Dec. 4, a man rose in the audience to point out, "Nearly 50 percent of the people are now paid with our tax dollars. If we lose that supermajority, they can vote themselves a raise any time."

"Supermajority requirements are an attempt to impose impediments to this kind of rank self-serving behavior," agreed Dr. Eastman, who has participated as amicus curiae before the U.S. Supreme Court in such cases as Boy Scouts of America v. Dale, Zelman v. Simmons-Harris (the Ohio school voucher case), and Grutter v. Bollinger (the Michigan affirmative action case).

"That why it's so critically important, when we've got limitations on our government, to make sure they abide by those limitations," the professor says.

The ruling in Guinn v. Legislature "is just unbelievably bizarre," Dr. Eastman told a meeting of the Review-Journal editorial board, earlier in the day on Dec. 4.

Since it throws out the newer Gibbons Tax Restraint amendment, supposedly in order to to defend the older school funding mandate, he sarcastically compared the ruling to saying, "The 13th Amendment conflicts with the earlier provision of the Constitution allowing slavery. Well, let's throw out the latter one. ...

"If there's one constitutional spending mandate (to fund the schools), then to fund everything else and leave that zero-funded" -- in order to force the "impasse" which resulted in Guinn v. Legislature -- "is the most cynical thing I've ever seen," Dr. Eastman said.

"The court had no business getting involved. The court could easily have told the governor, `Just open your proclamation (to allow the spending bills to be re-opened for cuts) and have a donnybrook at the Legislature.' Or it could have said the matter was non-judiciable, or it could have sent each proposal to a vote of the people; they had plenty of other remedies.

"We already have a due process claim. But these discussions with the governor, and maybe collusion with the teachers, only bolster that. (Vin) Suprynowicz's columns have helped bring these forward, so we'll do discovery on that, and that can only bolster my due process claim. I'll be copying you with my discovery motions."

How powerful does Dr. Eastman think the people behind this decision might really be?

"If you get word that some retired justice buys a million-acre ranch on his judicial pension you could see the Justice Department take an interest. ... My wife made me up my life insurance policy when I took this case."

Who might the court grant Dr. Eastman permission to interview under oath, in such a discovery process?

"The governor and his people. The staff attorney at the court who left over this." (Staff attorney Carol L. Chaffee said in her resignation letter to the Nevada justices that the "court's opinion in Guinn v. Legislature was not founded on a fair, measured and reasonable interpretation of law. ... I cannot justify it on any judicial basis.")

How could such interrogations be justified?

"One of the federal claims is that the court's decision was so out of left field, so contrary to any established law, that it violates due process," Dr. Eastman replies. "So one of the things you address in a due process claim is the bias of the judges. And so all of these allegations of ex parte communications could then come in."

But Nevada's high court has balked at every other attempt to discover who influenced them to issue such a ruling -- a ruling which offered a form of relief so extreme that even Gov. Kenny Guinn and state Attorney General Brian Sandoval say it went beyond anything they asked for or expected. Would the federal courts really order them to finally answer Dr. Eastman's questions? What if they refused?

"I have no idea. It would present an interesting question. We have a long way to go before we get there. I'm hoping the (U.S.) Supreme Court will save us all the trouble."

But if the case instead proceeds at the 9th Circuit, Dr. Eastman could foresee questioning Nevada's Supreme Court justices themselves, under oath?

"I would not do it without exploring the other avenues. You take those sorts of steps with great caution."

But, "With this decision we really don't have a constitution," Dr. Eastman concludes. "That's why the case is so important; we're trying to restore constitutional government. If we hand down to our children a world where constitutionalism no longer applies, then we are no longer free."

Vin Suprynowicz is assistant editorial page editor of the Review-Journal and author of the books "Send in the Waco Killers" and "The Ballad of Carl Drega." His Web site is www.privacyalert.us.