Thursday, January 22, 2004
Copyright © Las Vegas Review-Journal

STEVE SEBELIUS: Take the case

There's plenty of fun to be had in mocking the Nevada Supreme Court and its infamous decision in Guinn v. Legislature. You'll recall that's the ruling shunting aside the Gibbons Tax Restraint Initiative, which requires a two-thirds majority in both houses of the Legislature to raise taxes.

It's fun to imply the justices were asleep the day they taught law in law school, or to suggest they may have smoked crack during oral arguments, or that lawyers for the Nevada State Education Association may have substituted their research for the court's final ruling. After all, the court ignored the law. Ridicule is the least we can do. If America still had her revolutionary spirit, who knows what might have happened?

But after the laughter dies down, there's still a very serious issue left: That decision is still on the books, and still a clear and present danger to the state. Too strong? Not really, especially after you read the petition for writ of certiorari filed by John Eastman, the attorney hired by a group of Republican lawmakers who opposed taxes and were -- understandably -- outraged by the court's action. Simply put and without (much) exaggeration: So long as Guinn v. Legislature is the law of the state, no constitutional provision is safe.

Eastman, joined by other lawyers, including former Reagan administration Attorney General Ed Meese, have produced a well-reasoned, well-argued brief describing precisely why the U.S. Supreme Court should strike down Guinn v. Legislature. And although the odds are against it, the high court's justices should take the case. Consider a few of the strongest arguments:

• When the court ruled that the Legislature didn't need a two-thirds vote to create new taxes, it threw out the votes of every Nevadan who had supported the initiative. And that's not small potatoes: 78 percent of voters approved the measure in 1994 and 71 percent voted aye in 1996.

In addition, it diluted the votes of lawmakers themselves. Each Assembly member's vote was 1/15th of the votes necessary to block taxes before the ruling; afterwards, under simple majority rules, that vote counted for only 1/21st.

Moreover, Eastman argues, the court's action violated the Republican Guarantee Clause of Article IV, Section 4 of the U.S. Constitution, which ensures citizens have the right to determine the laws that govern their states. "Whether or not their (voters') anger ever erupts in a way comparable to Shay's Rebellion or the Whisky Rebellion, which gave rise to the protections of the Republican Guarantee Clause of Article IV, it is critically important that this court issue a writ of certiorari to review the Nevada Supreme Court's decision," Eastman writes. "A judicial insurrection such as that manifested by the decision below may well be even more dangerous than the insurrections of farmers and debtors that gave the framers of our Constitution such cause for concern."

• By ignoring the Gibbons Tax Restraint Initiative (codified at Article 4, Section 18(2) of the Nevada Constitution), the court failed to obey the clear mandate of voters. "The court reached its conclusion by what can only be described as a complete and willful disregard for the language and structure of the Constitution and for virtually every single canon of constitutional construction heretofore guiding Nevada judicial functions," Eastman writes. "The decision stands as unvarnished usurpation of the authority of the Nevada Constitution, a shameful violation of the judicial oath, and a repudiation of the principle that Nevada's is a government of laws rather than men."

Justices argued that a competing constitutional order to fund schools overrode the two-thirds initiative. But Eastman argues newer amendments should take precedence over older provisions. Not only that, but the education-funding mandate of Nevada's Constitution -- written in a more agrarian time and never since amended -- compels the Legislature to fund only a single school in every county for six months out of every year.

• The ruling could be cited as a precedent if the Legislature ever faces a similar situation in the future, which every reasonable observer knows is surely possible. "First, the decision `authorizing' the Legislature to ignore the two-thirds vote provision of the Nevada Constitution remains on the books, where it `lies about like a loaded weapon ready for the hand of any authority that can bring forth a plausible claim of urgent need,' " Eastman writes, quoting the Supreme Court in the 1944 case of Korematsu v. United States.

• And just because the Legislature finally did reach a two-thirds accord on taxes doesn't make this a moot point, as the state Supreme Court held in denying a motion to simply throw out its ruling. "Third, voluntary cessation of unlawful conduct does not moot a case where the actor remains free, as here, to begin the unlawful conduct anew," Eastman writes.

For these reasons -- and for the general principle that even our highest judges must obey and not ignore the law -- the U.S. Supreme Court should care about this case. And so should you.

Steve Sebelius is a Review-Journal political columnist. His columns appear Sundays, Tuesdays and Thursdays. Reach him at 383-0283 or by e-mail at SSebelius@reviewjournal.com.