Saturday, July 12, 2003
Copyright © Las Vegas Review-Journal

Experts discuss ramifications of ruling against two-thirds majority vote to raise taxes

Click above for enlarged image.

The Nevada Supreme Court drew criticism Friday from two constitutional experts who reviewed its ruling in the case brought by Gov. Kenny Guinn against the state Legislature.

James Gardner, who teaches constitutional law at the State University of New York at Buffalo, called the court's opinion "very strange" and "difficult to comprehend."

And Eugene Volokh, who teaches constitutional law at UCLA, described the opinion as "just awful."

"The Nevada Supreme Court is essentially ordering the state to violate the Nevada Constitution," he said.

Volokh has addressed the issue at length on his Web site, volokh.com. He said Nevada voters could fight back by recalling the six justices who voted in favor of the opinion, or the state Legislature could remove the justices from office.

"I'm hoping that Nevadans will be incensed enough by the judges' decision to take these necessary steps," the professor wrote on his Web site.

The Nevada Constitution allows the Legislature to remove justices "for any reasonable cause," which need not be sufficient grounds for impeachment. The removal of a justice requires a vote of two-thirds of the members of each chamber.

"It seems to me that ordering the Legislature to violate the constitution is reasonable cause for removal of a justice," Volokh said.

In a 6-1 decision issued Thursday, the Nevada Supreme Court set aside the state constitutional amendment requiring a vote of two-thirds of the legislators in each chamber to approve tax increases.

Several legal experts said the decision applies only to the current legislative session but could have implications for future legislative sessions in Nevada. Some said it also could have implications in other states.

Dan Burdish, a Las Vegas businessman and chairman of a group called Nevadans for Tax Restraint, said his organization is in the process of completing the necessary paperwork to initiate a recall effort against Chief Justice Deborah Agosti and the five justices who concurred with her decision. Justice Bill Maupin wrote the dissenting opinion.

Assembly Minority Leader Lynn Hettrick, R-Gardnerville, said he has no interest in trying to remove the justices who supported the majority opinion.

"My feeling is we have all we need on our plate right now," he said. "We just need to solve the budget issue."

Hettrick also said he does not think an effort to remove the justices would succeed in the Legislature. "I don't think there's any appetite to do that," he said.

In its decision, the Supreme Court found that an "irreconcilable conflict" exists between two constitutional provisions, the one requiring a supermajority vote for tax increases and another requiring the Legislature to fund the public education system.

After making that finding, the court ruled that the substantive requirement for education funding should override the procedural requirement related to the approval of tax increases.

"If the procedural two-thirds revenue vote requirement in effect denies the public its expectation of access to public education, then the two-thirds requirement must yield to the specific substantive educational right," the opinion states.

Both Gardner and Volokh said that argument is flawed because the supermajority requirement is the more specific provision and, as such, should prevail over the more general requirement for education funding.

They also said the most recently enacted provision, the two-thirds requirement, should take precedence over the older provision. Rob Natelson, who teaches a constitutional history course at the University of Montana School of Law in Missoula, made the same point on Thursday after reading the court's opinion.

"That's based on a well-recognized rule of constitutional interpretation that the court did not mention," he said.

Volokh said the Nevada court failed to understand that procedural requirements "are just as important in a democracy as substantive rights."

He said the supermajority requirement, approved by voters in 1996, "is a procedural requirement and a substantive protection for people's property rights."

The court's opinion, Volokh said, shows that it "is just not attentive to the importance that Nevadans place on their substantive property rights."

Natelson, Gardner and Volokh also questioned whether an irreconcilable conflict exists in the Nevada case.

Gardner said he found it strange that the court chose to blame the supermajority requirement for the tax and budget impasse in the Legislature. A simple majority requirement also could have led to an impasse, he said.

In addition, Gardner said, the court's decision to allow the legislative session to continue under simple majority rule fails to guarantee an end to the deadlock.

"What has happened here does show the unwisdom of a supermajority requirement for legislative decisions that have to be taken routinely," the law professor said.

Gardner said the U.S. Constitution contains supermajority requirements, but "they tend to be for things that happen rarely, like impeachment."

Criticism of the Nevada decision also came from the National Taxpayers Union in Alexandria, Va., and the American Civil Liberties Union of Nevada.

"It certainly does have very negative nationwide implications, not only for the states that have supermajority requirements but those who could use them," said Pete Sepp, a spokesman for the National Taxpayers Union. "The fact that these Supreme Court justices wear black robes certainly doesn't conceal their political agenda. Quite obviously, special interests ruled the day over the public interests."

The group has supported the enactment of tax limits in several states, including Nevada.

Gary Peck, executive director of the ACLU of Nevada, said members of the organization were troubled by the reasoning the Nevada Supreme Court used to reach its decision, "particularly the dubious distinction it made between substantive and procedural constitutional rights."

"We hope that distinction does not set a precedent that might be used to improperly create a hierarchy of rights inconsistent with core constitutional principles," Peck said.