Bills could spark court power play

Erin Neff

Friday, June 29, 2001 | 5:01 a.m.

This week was supposed to mark the one-month anniversary of the state Legislature's adjournment and the first holiday for lawmakers.

Instead the state Supreme Court will hear arguments Friday about two bills that didn't make it through the tumult, serving as another troubling reminder of how badly the 2001 session ended, and leading some to question where the power lies. "It seems to me that there may be a separation of powers issue here," Sen. Terry Care, D-Las Vegas, said.

The high court will hear oral arguments Thursday about Assembly Bills 661 and 94 -- two measures the Legislature approved after the midnight June 4 deadline and then failed to pass during the special session June 14.

The official 120-day session headed into such post-midnight chaos that the Legislative Counsel Bureau decided lawmakers could pass bills until 1 a.m. June 5 because the state's Constitution mandates adjournment by midnight Pacific Standard Time.

During the "extra" Pacific Daylight Time hour, lawmakers approved a number of measures. When Gov. Kenny Guinn ordered the rare special session to finish reapportionment, he also requested ratification of those past-deadline measures to stave off potential lawsuits over the extra hour of politicking.

Care, an attorney, and other lawyer-legislators have different views on whether the court should play any role in the matter.

"The Legislature does not tell the Supreme Court how to write its opinions, and the Supreme Court has no right telling the Legislature how to apply its rules," Care said.

Care said he thinks the court will set a dangerous precedent where backers of failed bills could sue claiming problems with the Legislature's deadlines.

But Assembly Majority Leader Barbara Buckley, D-Las Vegas, said she doesn't think the court is encroaching on the Legislature's authority.

"It's their job to decide the validity of legislation," said Buckley, an attorney with Clark County Legal Services.

Senate Majority Leader Bill Raggio, R-Reno, agrees, saying he thinks the court has a legitimate issue before it.

"I think it's strictly a unique question dealing with standard time versus daylight-saving time," said Raggio, an attorney with the Jones Vargas firm. "I don't think there's any concern about a separation of power."

Raggio also said he does not think the court will set any precedent because he does not anticipate future sessions ending in such disorder.

"Reapportionment really took up more time than we anticipated," Raggio said. "In a routine session we probably wouldn't have had this problem."

The bills ended up in the court's hands when proponents of the measures sued, arguing the legislation pass legally and should be forwarded to the governor's office.

Harvey Whittemore, a lobbyist representing casino interests, asked the court to rule that AB661 passed and should be signed into law. That measure allows large energy customers, such as casinos and mines, to purchase electricity outside of the state's current utilities. It also creates a low-income energy assistance program.

The Nevada Association of Counties also filed a writ with the court seeking a decision on AB94. That measure raises certain county fees to fund domestic- violence and foster-care programs and to modernize county recorders' offices.

Friday's arguments will be closely followed by legislators of both parties.

AB661 passed at 12:25 a.m. and AB94 passed at 12:38 a.m. June 5. But neither measure made it through the June 14 special session.

Buckley blames Assembly Republicans for that because the 15-member caucus was able to strike down AB94 in that chamber. The measure required a two-thirds majority of the 42 assemblymen to pass. The same Republicans supported the measure during the regular session.

"It was a temper-tantrum tactic that has never occurred before," Buckley said.

When the caucus threatened to vote against AB661, the Democrats decided not to bring it up for a vote.

Attorney and Assemblyman David Brown, R-Henderson, said there are times lawmakers must act for the betterment of their party.

"When it comes time for that once-in-a-decennium bill to come up, and you're fighting for your life ... it's a big fight," Brown, a freshman lawmaker, said. "We felt it was important to use whatever leverage we had."

Brown said he regrets that AB94 died, but also feels strongly that the state Constitution is a "moral compass" as well as a legal document binding society.

"We woke up in daylight-savings time that day," Brown said. "I think there is value to sticking to your Constitution rather than what is expedient."

Attorney and Assemblywoman Genie Ohrenschall, D-Las Vegas, said she thinks there is clearly a separation-of-power issue at play and thinks the court should validate the Legislature's decisions on the bills.

"I think it just shows you the weakness of the 120-day session," Ohrenschall said. "It's a great experiment, but it's got some bad limitations with it.

"If there's any backlash at all, I think it'll be against the 120-day session."

State Sen. Mark James, R-Las Vegas, agrees that the "limited process" is largely to blame for the last-minute problems.

Still James, an attorney, said he believes the Legislature's accomplishments in approving $60 million in educational funding is paramount to the problems that led to the court's handling of the bills.

"I don't think there's a separation of powers issue," James said. "That's the court's role."

But he added, historically, courts have been hesitant to step into a policy realm.

"Courts tend to allow Legislatures to interpret their own processes," James said.

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