Thursday, July 03, 2003
Copyright © Las Vegas Review-Journal

COLUMN: Steve Sebelius

Budget impasse makes history

CARSON CITY -- A knot of reporters, some carrying only notebooks, some laden with cameras and microphones, waited in the windswept courtyard of the Nevada state government complex late Monday night. Here, separated by grassy memorials and trees, one can find all three branches of Nevada government: To the right, the modern legislative building. To the left, the historic, domed state capital and the office of Gov. Kenny Guinn. And, recessed at the back of the campus, the Nevada Supreme Court.

It was quiet on Monday night, beneath the orange-colored lights that illuminate the park. But a fight was brewing among these three branches, and the first blow was about to be delivered.

The battle was a long time in the making, dating to Guinn's first term. The governor had, years ago, issued dire warnings about big deficits. And while his re-election campaign was virtually silent on the subject of taxes (preferring instead to show some footage of him beavering away on paperwork in the darkened capital after nightfall) everyone knew he was preparing something big.

Guinn's task force on taxes recommend a gross receipts levy to fix the state's problems, and the governor endorsed the idea. The Legislature accepted his budget, and passed all of it except for schools. And while Republicans made some objections here and there, the depth of their opposition wasn't known until the legislature's end, when the constitutionally required two-thirds majority to raise taxes could not be reached.

After two special sessions produced much the same results, the Legislature found itself at an unhappy impasse, cheered only by the heartless and the lovers of gridlock. In the meantime, school districts worried about having enough money to hire teachers and buy books.

So the reporters waited for the next, unprecedented step. A lawsuit, filed by Guinn against the Legislature, would accuse them of failing to perform one of their few constitutional duties: approving a balanced budget and providing money for the state's system of public schools.

One would think that the concept of such an action alone would encourage compromise. Essentially, lawmakers would find themselves accused of violating the state constitution, and their own oaths to support it. Politically, it would provide fodder for challengers all over the state, Republican and Democrat. Practically, it meant more delays in funding schools.

But the press was here anyway, and shortly before midnight, the figures became visible. Attorney General Brian Sandoval led a small group of men in a determined gait, with history following close behind.

A copy of the governor's petition for a writ of mandamus -- an extraordinary legal order that compels a person to take an official action -- was first dropped off at the Legislative Counsel Bureau, the official attorney for the 63 lawmakers. (Whether a single lawyer can ethically or practically represent the diverse viewpoints of all lawmakers remains to be seen.)

Then Sandoval and his men walked the short distance to the Supreme Court building, where special arrangements had been made to file the lawsuit at 12:01 a.m. on the first day of the new fiscal year, July 1. The orange light gave way to white as TV camera lights came on, and camera strobes flashed.

Sandoval climbed the steps to a second-floor balcony, and was let into the building by a court officer. A few minutes later, he emerged to address the press, after struggling to get out from behind the court's stubborn, heavy glass-and-steel doors.

The petition does not seek to raise taxes, Sandoval said. It only asks for the court to order the Legislature to do the job that should have been finished June 2: balance the budget and fund the schools. In short, fulfill the constitution. "This is a place that our Legislature and our state has never gone before," Sandoval said in meeting the press. "This is not a proud moment in Nevada state history."

The lack of a specific road map to a balanced budget is a legal necessity. While no one can say with any certainty what the court will do, it's clear the justices will take the least radical path they can.

They'll most probably order the Legislature to try to bridge its partisan differences once more. If that fails, they might order Guinn to re-open the state budget for cuts. And if that only results in more partisan haggling, could they order a radical but constitutional remedy: Live within the existing budget, eliminate all enhancements and fund the schools?

Might they address the compatibility of the two-thirds requirement versus the imperative to balance the budget? It's fairly clear that creating a new tax -- like the payroll or gross receipts taxes -- is beyond judicial power.

But, much like Monday night outside a darkened Supreme Court building, answers are hard to find.

Steve Sebelius is a Review-Journal political columnist. His column runs Tuesday, Thursday and Sunday. Reach him at 383-0283 or by e-mail at ssebelius@reviewjournal.com.