In 1994 and 1996, Nevada voters overwhelmingly passed the Gibbons Tax Restraint Initiative, which amended the state constitution to require a supermajority in both legislative houses to approve tax and fee increases. The language is unambiguous: A two-thirds mandate “is necessary to pass a bill or joint resolution which creates, generates or increases any public revenue in any form.”
Many lawmakers have chafed under the restriction and have at times tried to ignore it. Most famously, legislative Democrats in 2003 persuaded the Nevada Supreme Court to suspend the provision during a bitter budget dispute. Amid subsequent criticism, the court later repudiated its own ruling.
But the unfortunate tendency of the state’s judiciary to cover for lawmakers who seek to weaken the supermajority requirement remains alive. Consider a Tuesday ruling by District Court Judge Rob Bare involving scholarships for low-income Nevada students.
GOP lawmakers created the Opportunity Scholarship program in 2015. It allowed businesses to receive a credit against their tax obligations in return for donations to organizations that participated in the program. Funding levels were capped but set to rise each year.
During the 2019 sessions, however, Democrats passed Assembly Bill 458, which froze the program and eliminated the annual increases. The bill’s “fiscal note” acknowledged the move would “increase general fund revenue,” yet the proposal did not generate two-thirds support in the Senate. A group of parents sued, arguing that the measure was enacted in violation of the supermajority requirement.
In a nine-page decision, Judge Bare rejected that position. Instead, the judge — reaching for an Oklahoma Supreme Court decision to prop up his ruling — determined that because the two-thirds provision doesn’t explicitly mention the repeal of a tax credit or exemption, it does not apply to AB458. In reaching his conclusion, Judge Bare openly dismissed the clear wording of the Gibbons handcuff: “The court finds that Nevada’s supermajority provision does not apply to any bill that repeals or freezes an existing tax credit … even if the bill has the effect of increasing overall revenue.”
So even though the state constitution says that any bill increasing state revenue in “any form” must be enacted by a two-thirds majority, Judge Bare has unilaterally rewritten that mandate to his liking.
The plaintiffs vow to appeal. Good. In acting in blind deference to legislative Democrats, Judge Bare abrogates his duty to ensure that legislation adheres to constitutional guidelines. The judge has decreed that a lawful restraint imposed by Nevadans on their state representatives should be interpreted in a manner so as to least constrain those same representatives. In doing so, Judge Bare gives succor to the political establishment at the expense of the citizens it serves.