Federal jurisdiction questioned

Erin Neff

Wednesday, July 16, 2003 | 11:23 a.m.

Federal judges questioned this morning whether they had jurisdiction to wade into the state's legislative budget impasse by ordering a permanent restraining order against the state Legislature.

In a rare hearing in front of all active U.S. District Court judges in Nevada, judge after judge questioned whether they could overturn a state Supreme Court ruling that set aside a constitutional amendment requiring the Legislature pass a tax plan with a two-thirds vote.

"I think everybody can see the lack of zeal, and it's understandable, of this court to take up the issue," Chief U.S. District Judge Philip Pro said near the end of oral arguments in the case this morning.

After a hearing that lasted 1 hour, 45 minutes, Pro said the judges -- meeting in both Las Vegas and Reno via teleconference -- would adjourn to discuss the case.

"We're going to decide as promptly as we can," Pro said.

The court clerk said it would issue a written opinion as soon as it was finished. There was no indication when that would be, although two federal jury trials were on hold while the court was meeting on this issue.

During the hearing, in which judges peppered both sides with questions, John Eastman, a California-based attorney representing nine GOP senators and 15 GOP assemblymen, repeatedly attacked the July 10 opinion of the Nevada Supreme Court.

Ruling on Gov. Kenny Guinn's lawsuit to force the Legislature to break the budget impasse, the state court ruled that lawmakers could pass a tax plan with a simple majority to fund the state's K-12 education system.

"To give credence to such a decision would itself create problems," Eastman said, arguing the opinion violated due process for voters who in 1996 authorized the two-thirds majority vote on taxes.

"The Supreme Court eviscerated that structural requirement."

But Pro repeatedly interrupted him, at one point saying: "Your problem is with the Nevada Supreme Court and your direct appeal is to the U.S. Supreme Court."

Eastman argued he would not succeed in a writ to the U.S. Supreme Court because not all of his clients were a party to the suit that resulted in the opinion.

The Assembly, by a vote of 26-16, approved a tax bill Sunday. But 24 Republican lawmakers filed suit in U.S. District Court Monday seeking a restraining order on lawmakers for further consideration of that tax bill.

Since the 24 lawmakers were joined by citizen activists and anti-tax groups in the suit, other plaintiffs were not a party in the original case before the Nevada Supreme Court, and, Eastman said, they had no remedy to appeal to the U.S. Supreme Court.

But he also admitted that should the federal judges rule against him today -- and withdraw the temporary restraining order Pro granted Monday -- he would file a writ asking the U.S. Supreme Court for relief.

"If you rule against me today, I will be filing it," Eastman said.

Judges repeatedly asked him to prove they had jurisdiction. At one point in today's proceedings Judge James Mahan even asked Eastman how many of his clients had voted to increase the state's budget.

"They would have unclean hands, wouldn't they?" he asked.

Eastman said he did not know the answer to the question.

Later in the proceedings, when Legislative Counsel Bureau attorneys argued to defend the individual legislators named Monday in the suit, Judge Howard McKibben in Reno questioned whether lawmakers would be able to achieve a two-thirds vote on a tax plan on their own.

"What are the prospects?" he asked, to significant laughter in the standing-room-only courtrooms.

"I'm sorry, your honor, I just don't know," answered legislative counselor Wil Keane.

The Legislature has failed in its 120-day regular session and two special sessions to garner the votes. Only the Senate approved a plan, and that plan failed to get the required support in the Assembly.

While judges clearly stated their unease with treading into the state Supreme Court's territory, they also subtlely questioned the court's opinion.

Judge Larry Hicks said he interpreted the Supreme Court's ruling to mean that the Legislature can proceed with a simple majority vote for any tax plan -- even those beyond the current special session.

Keane disagreed.

Later, Judge Roger Hunt asked legislative attorney Brad Wilkinson whether lawmakers were charged with following a court order "even when they violate the constitution."

"If they're to be punished, it's at the ballot box on election day and not by a court," Wilkinson answered.

Jeff Parker, state solicitor general, said he thought Eastman did have one route for appeal to the U.S. Supreme Court since many of his plaintiffs did file a brief for relief in Guinn v. Legislature that the state Supreme Court denied.

"The gist of the counter petition was interpretation of constitutional requirements," Parker argued, suggesting the case could go to the nation's high court.

Parker also said they could ask the state Supreme Court for reconsideration on the issue.