Meeting en banc not unusual decision

Jace Radke and Will Oremus

Wednesday, July 16, 2003 | 11:21 a.m.

The seven judges of the U.S. District Court of Nevada may have been looking for consistency and confidence in their opinion on the state's constitutional crisis by meeting en banc, or as a single body, this morning, several legal experts said.

"I think the magnitude of the case and the feeling that the court wanted to give a uniform opinion are factors" in the decision, U.S. District Court clerk Lance Wilson said.

The judges met this morning in Las Vegas and Reno on a petition to bar the Legislature from passing new and increased taxes by a majority vote, rather than by two-thirds.

Twenty-four Republican legislators and trade associations opposed to higher taxes filed suit in the federal in Reno Monday, alleging the Assembly illegally passed a $788 million tax bill by a 26-16 vote, which is two votes shy of two-thirds.

The Nevada Supreme Court last week ordered the Legislature back to work and said the constitutional requirement to fund education took precedence over the two-third vote on taxes.

U.S. District Judge Philip Pro temporarily restrained the Legislature from taking additional action on Senate Bill 6 until this morning's hearing to decide if an injunction should be issued.

University of Nevada, Las Vegas Boyd Law School professor Carl Tobias agreed that the importance of the case probably was a factor in the judges' decision to hear the case together.

"The extreme public interest in this case ... may lead the judges to want to have the wisdom of (seven) of them instead of just one," Tobias said.

While an en banc decision has no special legal status, Tobias predicted that a strong decision one way or the other might discourage appeals more effectively.

"You can always convince yourself that a single judge got it wrong," but a unanimous decision may carry more weight, Tobias said.

Either side could appeal it to the 9th U.S. Circuit Court of Appeals, where a three-judge or an 11-judge panel could hear it.

Assembly Minority Leader Lynn Hettrick, R-Gardnerville, has said that if the group loses in federal district court, it will go to the 9th U.S. Circuit Court of Appeals.

The news of the en banc hearing has sparked discussion nationally among law experts on various federal court Internet discussion sites. The confusion felt by Nevada residents about the move is shared by those holding law degrees, said Diana Sclar, an associate professor at Rutgers University School of Law at Newark, N.J.

Meeting en banc is standard for courts of appeal in important cases, but it is unusual at the district court level, Sclar said.

"This will prevent different judges from giving different judgments," she said, "to get a uniform judgment through the district."

Though rare, en banc hearings are not unprecedented. Tobias said that all of a district's judges will occasionally convene to hear a case involving many similarly situated parties, to avoid handing down conflicting decisions to different plaintiffs.

Sun reporters

Cy Ryan and Malia Spencer contributed to this story.