Landmark ruling likely to affect future sessions

Saturday, July 12, 2003 | 3:46 a.m.

WEEKEND EDITION: July 13, 2003

Thursday's landmark Nevada Supreme Court decision that will allow the Nevada Legislature to break a budget logjam could have major ramifications on the future of state spending and on the way other states conduct their business.

That's the belief of some Nevada lawmakers who have been involved in the deadlock that has gone unresolved this year after a regular legislative session and two special sessions. It's a belief shared by others who have closely watched the legislative embroglio.

Although some lawmakers say they fear the court ruling could force future legislative disputes to be settled through litigation, two former Nevada governors and several legislators said they do not believe the decision will impact the balance of power among the legislative, executive and judicial branches of state government.

Others who have been paying close attention to the state's budget crisis believe the decision, in which the court ruled that the need to preserve children's rights by funding education supercedes another Nevada Constitutional provision that requires a two-thirds vote of all lawmakers to raise taxes, also could impact the other 14 states with supermajority laws.

Gov. Kenny Guinn petitioned the Supreme Court to break the logjam, since the state entered fiscal 2004 on July 1 without an approved budget for kindergarten through 12th grade education or the approved revenues to pay for the state budget over the next biennium. The hang-up has been in the Assembly, where the minority party Republicans -- who say they want budget cuts -- have mustered enough votes to block any tax increases.

Assembly Speaker Richard Perkins, D-Henderson, said that while he was surprised with the court's ruling, he thought the decision could be "Nevada's Marbury v. Madison."

The U.S. Supreme Court ruled in 1803 in Marbury v. Madison that it had sole jurisdiction to review the U.S. Constitution.

"This is a ruling that will set the stage in the future in cases of judicial review and the court's role," Perkins said.

But he said he didn't know how the ruling would play out in the Legislature.

"It is a difficult decision they made," Perkins said. "But we would still like to preserve the notion of having a two-thirds consent on any tax plan whenever we have that happen. We would like to have unanimous consent on most of the votes we have."

Among those disappointed that "another branch" of government got involved in the budget dispute was Assistant Senate Majority Leader Ray Rawson, R-Las Vegas.

"We would like to resolve it," Rawson said. "Precedents go for a long time and we're all concerned about that. It sets the stage for future legislatures on education issues. I don't know per se that a governor will abuse it. But it changes the dynamics of everything."

GOP lawmakers, stunned by the court ruling, say they believe the decision could have a negative impact on the way the Legislature conducts future business. But Democratic lawmakers said the ruling could make it easier for legislative business to get done.

Sen. Barbara Cegavske, R-Las Vegas, who said she opposed Guinn's decision to petition the court, expressed fear that future legislative disputes will end up in litigation because of the precedent set in this case.

"There will be other situations like this if there are enough people in the Legislature who are disappointed in the outcome," she said. "The thing that is unfortunate is that if someone doesn't like something that is done in the Legislature, they will go to the courts."

Cegavske said she was less certain about whether the Supreme Court ruling would weaken the balance of power among the three branches of state government. She also said she did not know how the ruling would impact future application of the two-thirds provision on taxes, which she supports.

"Time will tell how this will be played out," she said. "But when the voice of the people has been overthrown, that is not good."

Sen. Randolph Townsend, R-Reno, said lawmakers were warned that going to court would be a bad idea "because you don't know what the outcome is."

"Precedent has been set and you do not know where that is going to lead you and that's a very frightening thing," Townsend said.

Assemblyman David Brown, R-Henderson, said he believes legislative powers could be weakened if the Supreme Court steps in every time there is a budget deadlock.

"This sure makes it that much more likely," Brown said. "It establishes a pattern. Whether someone else's effort in the future is successful remains to be seen.

"It would have to be very similar circumstances for the court to get involved. You'd probably have to be done with the regular session and a special session. But if enough legislators hold out, the court's powers could be invoked again."

Brown said he did not believe the ruling permanently negated the constitutional requirement that a two-thirds majority is needed in both houses of the Legislature to approve new taxes.

"But if you're ever in a dogfight or dispute and you're at an impasse on a substantive issue that needs to be addressed and there's no other redress, any attorney could argue for a resolution by using the analogy of this situation," he said of the court ruling.

Sen. Michael Schneider, D-Las Vegas, disagrees with Brown and said he believes the ruling could bring an end to the two-thirds provision for new taxes, at least if it results in future deadlocks.

"You have a superminority who can block decisions on anything to do with taxes," Schneider said. "This ruling probably puts that aside in the future. If you have a superminority that won't budge and will shut things down, we would take it back to the Supreme Court because we now have a long-standing ruling."

Schneider conceded he's not a big fan of the two-thirds rule, arguing that he believes a simple majority is more democratic.

"I don't think that weakens the legislative branch at all," he said of the court ruling. "The court said the two-thirds law is procedural. I would agree with that. In a democracy you cannot allow a superminority to shut down government and take away people's opportunity to have an education."

Fellow state Sen. Bob Coffin, D-Las Vegas, said he did not believe the court ruling would weaken the legislative branch.

"This orders us to go back to work," he said. "It's nothing more than that."

But Coffin said the ruling could impact the way future legislation is crafted and prioritized. For instance, he said he believes budget and tax bills will be combined in future sessions, which he said has not always been true in the past.

And he said that if there are legislators who are holdouts on tax or budget issues, those lawmakers could face the possibility of having their own legislation delayed until the end of the session.

Senate Minority Leader Dina Titus, D-Las Vegas, said there was a danger that the executive branch could now assume more power on budget matters.

"That's why I hated to see the court intervene," Titus said. "And now the cloud that hangs over the Legislature, 'If you don't do what I want, I will go to the court,' is something that the governor has that he didn't have before.

"In the future when we do taxes, and we don't do them very often, they will always be tied to the DSA (the Distributive School Account, which funds K-12 education) because of this ruling."

But Assembly Majority Leader Barbara Buckley, D-Las Vegas, said she didn't think the court ruling would shift the balance of power among the three branches of state government.

"That the Supreme Court had to step in and make a ruling doesn't diminish the role of the Legislature," Buckley said. "We turn to the courts when there's a question of interpretation. They are the arbitrators of the constitution."

Buckley said it was ironic that the tactics used by Assembly Republican holdouts "resulted in such a landmark ruling."

University of Nevada, Las Vegas law professor Joan Howarth, a constitutional law expert, said the court's decision doesn't signal a shift in power but was "limited to what it saw as an emergency."

"What the court is telling us is that they would have had nothing to do with this except for the fact that the constitutional authority of the Legislature was not met," she said.

But the ruling did remind the public of the power a Supreme Court holds, she said.

"The court is a sleeping giant that we don't notice until we have a major decision," Howarth said. "It's not unusual for courts to step into a high-profile fray that reminds the public of the power that it holds.

"Clearly, the court sent a message to the Legislature that the court is ready to enforce the constitution."

Former Govs. Bob Miller, a Democrat, and Bob List, a Republican, also said they didn't think the Supreme Court ruling would alter the balance of power among the branches of state government.

"The court took action on what I believe is an individual case," Miller said. "Their remarks were limited to the facts from the regular session and the two special sessions. And their ruling doesn't usurp the authority of the Legislature to reach the final decision. It gives the Legislature the mechanism to make that more plausible."

Miller said the court did not take power away from the Legislature because a majority of lawmakers still are needed to approve new taxes in this particular case.

"Most principles in America are based on majority rule," he said.

List said the real consequences of the court ruling will be driven by what the Legislature does this week in Carson City. He said lawmakers who vote in favor of any form of a new corporate tax will be putting themselves in jeopardy during next year's general election because the public opposes such taxes.

"It would give fodder to challengers who oppose those taxes," List said.

Like Miller, List said he didn't think the Legislature's powers have been diminished.

"It certainly reminds everyone that the Supreme Court seemingly has the last word on resolving constitutional issues," List said. "The court certainly seized the situation to do with it as they thought appropriate. Everyone knows they have the authority to overturn legislative authority."

But List said he wouldn't be surprised if advocates of the two-thirds rule initiate a new petition drive to amend the state constitution so that that provision would overcome the court's ruling.

"Someone told me that the court overturned the will of the people," List said. "That's an argument that can be made."

Another former governor, Richard Bryan, a Democrat who also served in the U.S. Senate, said he didn't know whether the court decision would have long-term ramifications in Nevada. But he said he would expect that the decision will be studied closely.

"Clearly, every state capital in America that is dealing with a budget crisis and a two-thirds majority rule on taxes will be looking at this decision carefully," Bryan said.

One of those states is California, which is in the midst of its own legislative deadlock over the state budget. California, which faces a budget deficit estimated at $38 billion, also requires new taxes to be approved by a two-thirds vote

"If you're (California) Gov. Gray Davis, you've sent your chief of staff to the fax machine to get a copy of this decision," Bryan said. "There's no question in my mind that Gov. Davis and his staff have already reviewed this opinion. They will probably give careful consideration as to whether they file a similar lawsuit in California."

The ruling could reverberate further.

National Taxpayers Union spokesman Pete Sepp, whose Alexandria, Va., advocacy group supports supermajority rules on taxes, conceded that the Supreme Court decision could have a detrimental impact on other states with similar laws.

"That is a genuine fear," Sepp said. "The one consolation in Nevada is that the supermajority itself was not shot down. Clearly, education will be the rallying cause whenever someone doesn't believe in limits on government of any kind."

Sepp said that because of the Nevada decision, opponents of supermajority laws in other states may now be motivated to challenge them.

"This will also send a message to citizen activists who are crafting supermajority measures in other states to make sure they're crafted in a way so that when it comes to tax increases there are no exceptions," he said.

For Nicholas Johnson, an executive with the Center on Budget and Policy Priorities, a Washington research group that supports policies that benefit low- and moderate-income families, the Supreme Court decision represents an opportunity for supermajority opponents in other states to see if they can draw parallels.

"This will have some kind of influence on how other states deal with this," Johnson said. "The purpose of a supermajority is not to create gridlock but to prevent taxes. In this case (in Nevada), it produced gridlock. That's what policy makers in other states will be looking at."

But Johnson, director of the center's State Fiscal Project, said it was tougher to predict whether the Supreme Court ruling would alter the balance of power in Nevada.

"I'm not sure because there is a long history of courts intervening in the funding of education," he said.

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