Court plans swift action

Cy Ryan and Jace Radke

Wednesday, July 2, 2003 | 11:06 a.m.

Legislators will have the holiday weekend to work on their responses to Gov. Kenny Guinn's lawsuit seeking a Nevada Supreme Court end to the state's tax plan and school funding stalemate.

Chief Justice Deborah Agosti set a 5 p.m. Monday deadline for legislators' answers, and she said she expected to have the order officially filed in Carson City by Tuesday afternoon.

The decision was made after Agosti and Justices Myron Leavitt, Miriam Shearing, Bob Rose and Mark Gibbons conducted a five-minute hearing in Las Vegas on Tuesday.

Agosti said that her order invites the parties to file briefs to suggest a resolution to the conflict between two constitutional requirements -- for a two-thirds vote to pass a tax increase and to pass a balanced budget by a simple majority.

The order will also allow Guinn to file supplemental materials by the same Monday deadline.

After the Assembly failed to pass a tax plan and a school aid bill Monday, Guinn, through Attorney General Brian Sandoval, filed the lawsuit to force the Legislature to approve money for schools and enough taxes to balance the budget, as the Nevada Constitution requires.

The Senate had approved a bill to give schools $1.6 billion over the next two years and one to increase taxes by $873 million to balance the budget. But it bogged down in the Assembly.

Sandoval said his staff was looking at cases in five states that have the same two-thirds requirement for a tax package to see if there is any precedent. He said it was "very likely" his office would file a supplemental brief , but he must discuss its contents with Guinn.

Agosti said the court is making the case its priority.

"For informational purposes, the court expresses at this time its intention to commence its deliberation of this case forthwith upon receipt of the pleadings," Agosti said before refusing to take questions.

"The court appreciates the high public interest in this case and hopes for a public understanding of the court's inability to comment publicly upon pending matters."

Agosti's statements leave the court many avenues: It could with hold a hearing on the case Monday, deliberate privately, render a decision or ask for additional information from the parties.

In her statement Agosti did not say whether each legislator named in the suit would be required to file a response, or if the Legislature as a body could file a response.

The justices, who normally sit in Northern Nevada, were in Las Vegas on Tuesday for a meeting with Clark County District judges.

William Dressel, president of the National Judicial College, said today there are a number of cases where state supreme courts have ruled on the constitutionality of funding programs such as schools and welfare.

But he said the issue of a balance budget is unprecedented. From the statement by the court Tuesday, Dressel said the court is "really trying to find a common ground." He said the court wants the parties to frame the controversy in its briefs.

Richard Morgan, dean of UNLV's Boyd Law School, said the Supreme Court could decide it doesn't have jurisdiction, but he said it was "likely (it) would try to break the impasse."

He said in its statement Tuesday the court raised the issue itself about the inconsistencies of the majority rule to pass a budget and the two-thirds vote necessary to approve taxes. He said he did not think the court would invalidate the two-thirds majority that was approved twice by the voters.

"I think the court will try to find ways to harmonize these," he said.

Morgan said he did not see the court ordering the Legislature to approve a specific remedy, such as passing a gross receipts tax or telling it where to reduce the budget.

Guinn said Tuesday he was pleased the court reacted quickly to his suit and expressed hope the dispute could be resolved soon.

Sandoval said if the court grants the petition and the Legislature fails to comply "there are three remedies." He said they each could be fined $1,000, or sentenced to 90 days in jail or cited for contempt.

He did not want to see the lawmakers go to jail, Sandoval said.

The suit does not suggest punishing the lawmakers if they fail to act as sought by the petition.

The court's invitation for responses could provide plenty, and often conflicting, advice from lawmakers and others.

Sen. Bob Coffin, D-Las Vegas, wants the court to decide if the two-thirds vote required for passing taxes is constitutional. Assembly Minority Leader Lynn Hettrick, R-Gardnerville, said he thinks the petition filed by Guinn may violate the separation of power doctrine.

"I don't see how the executive can force us to vote," Coffin said.

Senate Minority Leader Dina Titus, D-Las Vegas, said she was surprised the court raised the two-thirds issue.

"I don't see how we can suggest a resolution when the two-thirds is in the Constitution," she said.

Sen. Ann O'Connell, R-Las Vegas, said today that Republicans plan to file a countersuit.

She said some of the GOP senators and assemblymen met just before the close of the session to map a legal strategy. They may hire a private attorney to handle their case.

She said the governor's petition to the court "was not necessary."

O'Connell said there was still time left in the 20-day special session to take action.

Guinn said he filed the action because July 1 was the start of the fiscal year.

The Legislature is taking a recess and may not convene until next week. Assembly Speaker Richard Perkins, D-Henderson, said he would work during the interim to reach a compromise. But he said Tuesday that he had talked to only one or two lawmakers.

Lorne Malkiewich, director of the Legislative Counsel Bureau, said the legal staff of the Legislature would work through the weekend preparing legislators' briefs. The legislative legal office wants to be sure it represents every legislator's point of view so there could be several different briefs filed, he said.

"This will be tricky," Malkiewich said.

This suit, he said, poses the issue of separation of powers -- can the court tell the Legislature how to do its business?

Perkins said he would talk to Legislative Counsel Brenda Erdoes about how on to approach an answer to the suit.

The Senate passed a resolution Tuesday that will be filed with the Supreme Court that says it complied with the Constitution. It passed the school aid bill and the tax package. But the Assembly could not muster the two-thirds for the tax plan.

Fifteen Republicans say the budget must be reduced by 3 percent before they would support any taxes. To pass taxes, 28 of the 42-member Assembly are needed. So far four Republicans have joined with the 23 Democrats, leaving the Assembly one vote short of the needed two-thirds.

Among the loudest critics of the Legislature's inability to pass the tax plan and budget have been parents, teachers and school districts. Clark County and other districts have had to delay hiring new teachers.

"The parents I've been talking to throughout the day are very upset," said Teri Witzel, president of the Katz Elementary School PTA, who organized several rallies to urge the Legislature to act. "We have to have taxes. We have to have a budget."

If a budget is not passed by July 15 more than 400 specialist teachers in Clark County will have to be reassigned to help with some of the 745 regular classroom vacancies created by the district's inability to hire new teachers.

Tuesday was the start of a new fiscal year and since there is no school aid bill, the state can't send any money to the districts until the impasse is resolved.

The Clark County School District has enough money to get through the year-round session, which ends Aug. 7, said Augustin Orci, assistant superintendent for instruction, on "Face to Face With Jon Ralston," which airs on Las Vegas ONE, Cox cable Channels 1 and 39.

"The real question is whether we will be able to open school in the fall," he said. "We cannot deficit spend by law."

The district's options, which the School Board will discuss July 10, are an abbreviated schedule or delaying the start of school, he said.

The district already has reassigned 411 literacy and computer specialists, as well as Gifted and Talented Education teachers, to regular classrooms, a move officials say can be reversed if the money flows by July 15.

"Every day that goes by it seems that the light at the end of the tunnel doesn't appear," Orci said.

Both the Clark and Washoe county school districts have asked the court for permission to file friend-of-the court briefs, saying they have "unique insight into the affect (sic) the inaction of the Legislature will have on students"

The school districts sided with Guinn in asking the court to order the Legislature to comply with the Constitution.

A joint petition filed by C.W. Hoffman Jr., attorney for the Clark County School District, and Jeffrey Blanck, general counsel for the Washoe County School District, said the "scheduled opening of schools in August 2003 is in jeopardy without funding, and the districts will not be able to provide sufficient educational programs necessary to meet the educational needs of their students."

In the petition Georgeann Rice, associate superintendent of human resources for the Clark district, said it has been unable to recruit teachers because of the uncertain finances from state coffers.

"Because 70 percent of the district's new hires come from out of state, every day that passes means fewer and fewer are willing or even able to relocate their families across the country," she said in an affidavit filed with the court. "As word of our situation, and the fiscal unknowns we face spread, our stature as a progressive district of opportunity decreases damaging our credibility and our future recruiting efforts."

She said state law requires fingerprinting of every new employee, and it takes about three months to receive the FBI reports. "Every day that passes means that those we hire will come into the classroom with out children but without fingerprint clearance," said Rice.

Officers of the Nevada State Education Association met Tuesday to discuss possible legal action and will likely file a motion to intervene, Executive Director Ken Lange said this morning.

The state teachers union has been in discussions for several weeks over whether to file a friend of the court brief or a file a motion to intervene. A friend of the court brief could be attached to motions filed by other parties. But if the union files a motion of its own its representatives would be allowed to present arguments in court, Lange said.

Lange said he was "surprised and deeply disappointed" that the deadlock had come to the point of needing court intervention.

"There was a real attempt on the part of the majority to find some creative and flexible solutions," Lange said.

Sun reporters

Jean Reid Norman and Emily Richmond contributed to this story.

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