Thursday, July 10, 2003
Copyright © Las Vegas Review-Journal

COLUMN: Steve Sebelius

Steve rules

I'm no lawyer, but I have watched the people who play them on TV. And with a legal education provided by "L.A. Law," "Law & Order" and "The Practice," here's what I think ought to happen in the much-celebrated case of Guinn v. Nevada Legislature, currently pending in Nevada's Supreme Court.

First, the court should rule the Legislature in violation of Article 9, Section 2 of the state constitution, which requires a balanced budget to be passed for each fiscal year, and in violation of Article 11, Section 6, which requires the Legislature to support the university and system of common schools with money from the general fund. (If, under the 1803 decision Marbury v. Madison, courts can review the actions of legislatures to ensure they comport with the Constitution, then surely courts can review the inaction of a legislative body when a failure to act violates the constitution.)

Second, therefore, the court should grant Gov. Kenny Guinn's original petition for a writ of mandate, and compel the Legislature -- by a specific deadline, perhaps two weeks from the date of the ruling -- to fulfill its constitutional duty by passing a balanced budget and funding the universities and common schools. Failure to comply with that order would result in a citation for contempt of court, although the court should trust that responsible government officials will fulfill their constitutional duties, especially when so ordered by justices.

Third, however, the court should deny the remedy outlined in Guinn's supplemental petition, wherein Attorney General Brian Sandoval maintains the Legislature has "committed itself" to raising about $860 million in new taxes, and argues that the court should set various amounts of taxes to be raised or even take over the budget-writing process. Precisely how the Legislature balances the budget and funds schools is a matter exclusively within the purview of elected lawmakers, not the court. So while justices can compel the Legislature to act, it cannot prescribe the manner in which it does its job. That includes Guinn's decision on whether to reopen the budget to cut increases in spending, and the particular type of taxes eventually employed to balance the budget.

Fourth, the court should specifically deny the Assembly Republicans' hypocritical petition that Guinn be ordered to reopen the budget. If it would be an abuse of the court's discretion to order the Legislature to not only balance the budget, but also prescribe how lawmakers should do it, it would also be an abuse of the court's discretion to intrude on Guinn's discretion and constitutional authority to set the agenda for special sessions. The constitution isn't a menu, in which lawmakers get to pick the sections they like and toss the ones they dislike. No substitutions, please.

Fifth, the court should quickly deny the challenge contained in the poorly reasoned amicus curiae brief filed by the Nevada State Education Association and others challenging Article 4, Section 18, Subsection 2 --otherwise known as the Gibbons Tax Restraint Initiative -- which requires a two-thirds majority to create or raise any taxes. Justices should rule that, while the provision intentionally makes it more difficult to raise taxes, it is plainly constitutional and reflects the express will of the people. (It was approved by 78 percent of voters in 1994, and 71 percent in 1996.) Whether the measure is wise public policy is not within the proper jurisdiction of the court.

Sixth, the court should reject the contention that the simple fact lawmakers show up for floor sessions, committee meetings and vote qualifies as fulfilling the Legislature's constitutional duty. (This idea was put forward in a brief by state Sens. Terry Care and Mark Amodei.) It should remind the entire Legislature that the job of lawmakers is not to merely sit at their desks; their constitutionally mandated job is to balance the budget and fund the universities and common schools.

They've failed -- as an institution, if not as individuals -- to do that job, despite the constitutional 120-day deadline and the beginning of the new fiscal year. (The Care-Amodei brief, while obnoxious, condescending and improperly flippant, does contain some of the most compelling case law brought to bear.)

Seventh, the contention made by the Nevada Taxpayers Association that the already-approved budget bill should be struck down as unconstitutional because the tax plan had yet to pass at the close of the regular session should be rejected. The fact is, the state will take in more than enough money to fund those portions of the budget that have already been signed into law. Only the schools budget remains to be approved, and doing so without further cuts will require raising taxes.

So what happens if the Legislature meets for the two-week period and still can't come to an agreement? Let's jump off that bridge when we come to it.

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.Precisely how the Legislature balances the budget and funds schools is a matter exclusively within the purview of elected lawmakers, not the court.