Justices’ ‘bold step’ signals end to deadlock

Friday, July 11, 2003 | 11:05 a.m.

"This was a bold step by the court and a great victory for Nevada schoolchildren," said Senate Minority Leader Dina Titus, D-Las Vegas.

She and Senate Majority Leader Bill Raggio, R-Reno, both said they hoped to have a tax plan and a school funding bill approved by early next week.

The court, in a 6-1 ruling, ordered the Legislature to "proceed expeditiously" with its work in fashioning a tax plan to balance the state's budget and to approve a school aid bill.

But the most important part of the decision said the tax increase, in this case, did not require a two-thirds vote as mandated by the Nevada Constitution.

Writing for the majority, Chief Justice Deborah Agosti said the constitution requires the state to support the public schools, and that takes precedent over the two-thirds requirement.

Raggio has called the Senate back into session Monday. The Assembly could go back as soon as Sunday.

Although Raggio said there were no winners or losers in the decision, it clearly was a blow to the 15 members of a GOP bloc in the Assembly that has stymied any tax proposal from achieving a two-thirds majority in votes.

Both Titus and Assembly Majority Leader Barbara Buckley, D-Las Vegas, said this will prevent the bloc from holding "hostage" a tax bill while trying to force cuts in the $4.9 billion state budget.

Approval in the Assembly would have required 28 of the 42 members; after the court decision it will require only 22. Democrats control the Assembly, 23-19.

In the 21-member Senate, a majority of 11 will now be required. The GOP holds the edge in the Senate, 12-9.

There was some murmuring about appealing the decision to the federal courts.

Raggio said he was advised by legal staff in the Legislature it was not a federal issue.

Buckley, a Las Vegas attorney, said, "I don't think there is a federal court (that) is willing to get involved in a Nevada funding issue."

One constitutional expert said there is little room legally for reversing the decision.

"The only way that this can become overturned by a federal court is for them to decide that the Nevada Supreme Court's interpretation of the Nevada Constitution violates the federal Constitution and that would be very unusual," said Joan Howarth, a constitutional law expert at the University of Nevada, Las Vegas.

Howarth said federal courts usually allow state high courts to have the final word on such issues.

Titus, a political science professor at UNLV, said this ruling would probably be used as a national precedent in legal cases.

"Overturning a piece of the constitution and a petition voted on twice is bold," she said.

An initiative petition requiring a two-thirds approval on new or increased taxes was approved in 1994 and 1996 by an overwhelming number of voters. It was pushed by Rep. Jim Gibbons, R-Nev., who said Thursday he was outraged by the court's decision.

"The court failed to protect the will of the people of Nevada and has denigrated our state's constitution and political process," said Gibbons, who was traveling on the way back from a trip to Iraq.

Assembly Minority Leader Lynn Hettrick, R-Gardnerville, expressed similar thoughts.

"They just wiped out the constitution and two votes of the people," Hettrick said.

The Legislature, in one regular session and two special sessions, failed to approve a tax increase plan and also a $1.6 billion two-year appropriation for Nevada schools. When the new fiscal year started July 1 without money for the schools, Gov. Kenny Guinn filed a petition with the Supreme Court, asking it to force the Legislature to obey the constitution by passing the taxes and to approve the school aid bill.

"In granting our writ, the court has agreed that the Legislature has a constitutional obligation and deadline to pass a balanced budget and provide funding for education," Guinn said, reading a statement after the ruling.

He said the decision "leaves no doubt that legislators must finish their work without further delay."

Guinn refused to take questions .

Attorney General Brian Sandoval, who represented the governor in the legal case, said he was pleased with the decision. The ruling on nullifying the two-thirds majority applies only to this case. He said he wants to analyze the decision to see if it will come into play in the future.

Raggio has called the leadership together today in Carson City in hopes of reaching an agreement before the session officially reconvenes.

Assembly Republicans have called for reducing the $4.9 billion state budget by more than $100 million before they would consider any tax increase. But now they have lost their leverage to block any tax increase.

Assembly Democrats favor a gross receipts tax on business, but that is opposed in the Senate. The Senate approved a tax bill calling for a payroll tax coupled with a net profits tax on financial institutions.

Agosti wrote that the court concluded it was futile to order the Legislature to debate further under the two-thirds majority.

"If the procedural two-thirds revenue vote requirement in effect denies the public its expectation of access to public education, then the two-thirds requirement must yield to the specific substantive educational right," Agosti wrote.

Justice Bill Maupin, the lone dissenter, said he felt it was too early for the court to intervene. He said the next payment to the schools is not due until Aug. 1. He would have given the lawmakers until July 28 before the court stepped in.

He said the Legislature is under no express constitutional duty to pass its appropriations and tax bills by the beginning of the fiscal year.

"Indeed in the last 10 years, the Legislature has worked beyond the fiscal year's beginning three times," he wrote.

On the two-thirds vote requirement, Maupin said there was no inherent conflict between the supermajority tax vote and the majority vote on the education budget. The only conflict arises, as in this case, when "education funding is prevented by an inability to balance the budget with sufficient funding mechanisms."

A group called Nevadans For Tax Restraint said the decision was an "unprecedented usurpation" of the separations of power doctrine.

Dan Burdish, a leader of that group, said it is considering pursuing a recall of the six justices in addition to a referendum to toss out any tax plan that is approved.

Greg Broderick, an attorney with the Pacific Legal Foundation in Sacramento, Calif., called the decision terrible. The foundation, which advocates individual rights, filed a "friend of the court" brief suggesting the court should stay out of the case.

He said the ruling "sets a dangerous precedent and totally ignores the will of the 300,000 Nevadans that passed the two-thirds requirement in 1996. The real losers here are the voters."

Carol Vilardo, president of the Nevada Taxpayers Association said she was getting calls from people who voted for the constitutional amendment that set the two-thirds requirement.

"The reaction is that, 'I voted for the two-thirds decision. How can the court strike that down? That means my vote doesn't matter.' That has been the most pervasive reaction," she said. "It has been wild."

Vilardo said while there are no plans for legal action, the consequences of the decision are not yet fully known.

"I think the court stepped on and went into some very very dangerous ground with this ruling," Vilardo said. "I think one of the unknowns right now is how this will be viewed for future votes when two-thirds is required."

Sun reporter

Jennifer Knight contributed to this story.