Friday, April 09, 2004
Copyright © Las Vegas Review-Journal

Nevada court's tax ruling criticized by law review

CARSON CITY -- A 6-1 Nevada Supreme Court decision last year invalidating the voter-approved two-thirds requirement for the Legislature to raise taxes has jeopardized the separation of powers and overlooked the importance of procedural rules in the American legal system, a Harvard Law Review article says.

The article was printed in January by the law review, a student-run organization with the primary purpose of publishing a journal of legal scholarship.

The law student who wrote the article was not named, which is the review's policy for student writings.

It criticizes the Nevada Supreme Court because it "misapplied its own rules" for interpreting conflicting constitutional requirements.

The court, in a ruling that still is being challenged in the federal court system by 24 Republican lawmakers, erred by failing to "harmonize" two conflicting provisions of law and instead made funding of education more important than the procedural requirement for a two-thirds vote to raise taxes, the article said.

The court also ignored a judicial rule that the newer provision (the two-thirds vote requirement) should take precedence over the old (the education funding provision).

Erwin Chemerinsky, a professor at the University of Southern California Law School, said the article won't have much effect on the Nevada Supreme Court decision.

"Student notes generally don't have very much influence in legal thinking or in court opinions," he said. "This is just one law student's opinion and is likely to be regarded as such."

Chemerinsky, a Harvard law graduate who worked on the Nevada Legislature's opposition brief to the U.S. Supreme Court taking the case, said the article won't have any real impact unless the decision comes up again. The U.S. Supreme Court declined last month to take the case.

But John Eastman, director of the Claremont Center at the Chapman University School of Law, in Orange, Calif., who continues to represent Republican lawmakers challenging the ruling, called the article a significant contribution to the discussion.

The article from the flagship law review in the country raises questions about, "whether citizens, through the initiative process, can impose restrictions on government officials," Eastman said.

The article undercuts the argument that the need to fund education was irreconcilable with the two-thirds vote requirement, Eastman said.

Cliff Young, a retired Supreme Court justice who continues to serve as a senior justice for the court, is a graduate of Harvard Law School.

He wouldn't comment on the Supreme Court ruling but said the Harvard Law Review is well regarded in academic circles, as are the law reviews of many other notable law schools around the country.

"They have a board that considers the articles," he said. "They are well-researched and well-written."

Lorne Malkiewich, an attorney and director of the Legislative Counsel Bureau, said the Harvard review is a prestigious publication. Such articles typically are used as research tools by attorneys arguing cases in the U.S. Supreme Court, he said.

Law reviews "publish serious research," he said.

In its decision, the Nevada Supreme Court said the procedural constitutional requirement of a two-thirds majority in the Legislature to pass a tax increase had to be sidestepped because it conflicted with the substantive constitutional mandate to fund public education, the article said.

"This new rule is not only contrary to precedent, but also threatening to the separation of powers in two ways: it provides the court too much discretion in deciding which constitutional requirement to prioritize when there appears to be a conflict, and it jeopardizes the integrity of procedures that are central to the separation of powers in a free republic," the Harvard Law Review article said.

"The court could have ensured that the Legislature would fund education without setting aside any constitutional provision by requiring that the Legislature reopen its debate on the budget and either provide funding for education before all other spending or enact cuts to the existing budget to meet the demands of education," the article said.

The solution offered in the article is the one sought by Assembly Minority Leader Lynn Hettrick, R-Gardnerville, in June 2003 before Gov. Kenny Guinn sought the Supreme Court's intervention.

Hettrick, who was unavailable for comment on the Harvard article, said in June the various agency budgets already approved by lawmakers should be reopened to reduce the size of the tax increase needed to fund education.

Guinn said he would consider reopening the budget if legislative leaders sent him a resolution seeking to do so, but none was ever forthcoming.

Guinn then asked the court to intervene, although he did not ask that the two-thirds vote requirement be suspended as the court decided to do.

The Supreme Court said in its ruling that the 2003 Legislature could pass a tax increase by a simple majority because of the education funding crisis. Ultimately, the Legislature passed an $833 million tax increase and funded public schools while observing the two-thirds vote requirement.

But the opinion remains on the books; and the 24 Republican lawmakers, among others, fear it will be used as a precedent to push tax increases through in future sessions by a simple majority. A hearing on the case will be held next week before the 9th U.S. Circuit Court of Appeals.

Rep. Jim Gibbons, R-Nev., who succeeded in getting the two-thirds vote requirement before Nevada voters, said in a statement the review article seems to endorse the concept in his new Education First Initiative.

The article "seems to believe that the best way to have maintained the two-thirds requirement to raise taxes while funding education in Nevada would have been to reopen the budget, fund education first, and then fund the rest of the budget," he said.

Ken Lange, executive director of the Nevada State Education Association, said the law review article is a single point of view.

"Had the court followed that course of action and directed the Legislature to undo what it had already done, it might have meddled more in the legislative process than it did by telling lawmakers to get busy and solve it and by taking out the (two-thirds) roadblock," Lange said.

"We believe the court acted properly," he said.

The law review article also said the court misapplied its own court rule by saying substantive provisions in law (the requirement that public education be funded) carry more weight than procedural provisions (the two-thirds requirement to raise taxes).

Such a rule "grants too much discretion to the court," the article said. Procedural requirements are "essential to the functioning of a government."

The court's departure from its own rules poses a serious threat to the separation of powers, the article said.

"In favoring a specific remedy for the Legislature's failure to meet its education mandate, the court overstepped its proper role," the article said. "The court could easily have reconciled the clear and specific provision with the broader substantive right to education, leaving the duty to resolve the political question of funding squarely where it belongs -- with the Legislature."