Legal challenges shift toward prevention

Jace Radke and Cy Ryan

Wednesday, July 23, 2003 | 11:17 a.m.

Unresolved legal actions in connection with the Nevada Supreme Court's July 10th decision to allow the Legislature to approve a tax package with only a majority vote to fund public schools instead of the constitutionally mandated two-thirds majority vote:

A Las Vegas attorney asked the Nevada Supreme Court on Tuesday to withdraw its decision that education funding took precedence over the two-thirds majority and allowed the Legislature this year to pass a tax plan with a simple majority.

Daniel Polsenberg, the lawyer representing the 24 Republican legislators, said in a supplemental brief filed hours after an $836 million tax plan passed both houses with a two-thirds vote that the "perceived" crisis has passed and the court should void its opinion.

In his motion, Polsenberg said "This court's July 10 opinion is a dangerous constitutional precedent" and should never be cited in future cases.

"The opinion, hastily concocted, gives the impression to many that the two-thirds requirement has been removed from the Constitution, despite the vote of the people," the brief said.

Polsenberg is asking the court to rehear the case. Attorneys for Gov. Kenny Guinn and the Nevada Legislature have until Friday to file their responses.

Judge William Dressel, president of the National Judicial College in Reno, said there are still legal issues to be settled, even though a tax plan has passed.

"Their argument is going to be that these cases are not moot because they want to stop the effect that this could have in future legislative sessions," Dressel said. "The constitutional infirmity still exists."

Dressel said that one thing that is now certain is that courts will take their time with the cases.

"The sense of urgency is gone because they passed a plan," Dressel said.

Joan Howarth, a University of Nevada, Las Vegas law professor and expert on constitutional law, agreed that the process will likely slow down, but said that the shadow of the Supreme Court's decision still hangs over the state.

"There is no question that if the Supreme Court ruling stands it will be a backdrop for future legislation in the state," Howarth said. "The terms of the decision may have been limited to the special session, but the analysis of that decision is still going to carry weight."

Assembly Minority Speaker Lynn Hettrick said after the Assembly vote late Monday that passed the tax plan 28-14 that he would continue to pursue lawsuits challenging the July 10 state Supreme Court vote.

Hettrick has asked the state court to reconsider its decision to allow the Legislature to approve a tax package with only a majority vote to fund the public schools. Hettrick is among the 24 Republicans who sued in U.S. District Court over the state court's decision. The state's seven active federal judges, meeting as a group last week, said they did not have jurisdiction to take up the matter because it relates to the state constitution.

That decision has since been appealed to the 9th U.S. Circuit Court of Appeals, and is scheduled to be heard this fall.

The Independent American Party and other state political and activist groups filed a challenge in federal court seeking to restrain Gov. Kenny Guinn and the Nevada Legislature from passing any tax increase without the constitutionally mandated two-thirds majority, but that motion was denied Tuesday by U.S. District Judge Kent Dawson.

In a written decision, Dawson said that the claims made in the suit are too speculative at this juncture.

"A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all," the decision states.

The IAP was joined in the suit by the Nevada Republican Liberty Caucus, the Nevada Committee for Full Statehood, Eagle Forum, the Nevada Committee for Immigration Reform and various citizens.

Joel Hansen, attorney for the IAP, said that the group may file amicus briefs to future motions in the Hettrick suits.

Another lawsuit filed in U.S. District Court last week also will go forward, the head of a local environmental group who filed it said.

Robert Hall, president of the Nevada Environmental Coalition, said the decision that a budget can be passed without a two-thirds majority is an unconstitutional raid on legislative power.

The suit, assigned to U.S. District Court Judge Roger Hunt, asks that the state court's opinion be reversed and that the justices be enjoined from any further enforcement of the opinion. Hunt has not set a hearing in the case or made a decision, and is out of the district until Monday.

Dressel said he believes the plaintiffs are pursuing every avenue open to them.

"They want to exhaust all their remedies, so that when they get to the higher courts they aren't sent back down," Dressel said. "The federal judges have told them that the (U.S.) Supreme Court is where they are going to have to go."

Howarth said that she would be surprised if the U.S. Supreme Court would hear any of the cases.

"It would be surprising because the same general jurisdictional reasons would apply there that applied before the federal judges," Howarth said. "The Nevada Supreme Court is the final arbiter of the Nevada constitution."

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