Court denies request for emergency order

Tuesday, July 22, 2003 | 9:27 a.m.

CARSON CITY -- The Nevada Supreme Court today denied a request for an emergency order to halt the Legislature from enacting any new taxes without a two-thirds majority vote.

The court acted on a request by Daniel F. Polsenberg, the Las Vegas attorney for 24 Republican legislators who asked the court Monday to reconsider its decision to allow the Legislature to approve a tax package with only a majority vote to fund the public schools.

Polsenberg asked the court Monday for an emergency order to withdraw its writ that permits the Legislature to pass a tax package with a majority vote instead of a two-thirds vote as required in the state constitution.

Chief Justice Deborah Agosti denied the motion and ordered Gov. Kenny Guinn and the Legislature to answer the rehearing request by Friday. She said the court wants to hear from the opposition before issuing any emergency order.

The 24 GOP lawmakers are also fighting the Supreme Court opinion in the 9th U.S. Circuit Court of Appeals. They are asking the Nevada Supreme Court for a rehearing and to delay its order permitting the tax bill to be passed by a simple majority.

Polsenberg, in conjunction with California law professor John C. Eastman, said the ruling by the Nevada Supreme Court "allowing tax increases with fewer votes, amounts to the taking of property of Nevada citizens and businesses without the process that was due."

He said the court should issue a stay to keep the status quo requirement of a two-thirds majority to allow for time to fully examine the issues in the case.

The Supreme Court ruled that in this case where there is a conflict between increasing taxes and funding education, the constitutional amendment on the two-thirds vote requirement must give way to passage of the $1.6 billion school aid bill.

Polsenberg said the "enactment into law of any tax revenue bill without the support of two-thirds of the members of each house threatens to cause serious mischief if it is later determined by (the Supreme Court) to be invalid and its effects undone."

He was referring to the possibility of the state collecting the taxes, finding out the law is invalid and then having to refund the money collected.

Polsenberg suggested the Supreme Court order the Legislature to pass the school funding budget first before the appropriations for general government are approved.

"There is no irreconcilable crisis, however, because the current situation has been cynically manufactured by those wanting to force the highest tax increase," he said.

Democrats in the Assembly tied the school funding plan to the bill raising taxes, hoping to force some Republicans to support a tax increase.

The Supreme Court, Polsenberg said, ignored the "long-established doctrine that in interpreting statutes or constitutional provisions of equal weight, the last in time prevails over early provisions," referring to the passage of the supermajority initiative petition in 1966 as compared to the funding education provision first that was enacted more than a century ago.

The court denied a motion by 24 citizens, several of them officers or members of the Independent American Party, to intervene in the suit to bolster the case of the Republican legislators.