Teachers’ unions fight try to scuttle tax-vote ruling

Friday, July 25, 2003 | 11:28 a.m.

CARSON CITY -- Teachers' unions want the state Supreme Court to make sure that the constitutional requirement of two-thirds approval for legislative passage of new taxes never stands in the way of education funding again.

The two-thirds provision allowed "a few anarchists in the Nevada Legislature" to damage the educational system of the state with their opposition to a tax increase, said a teachers' unions' brief filed with the court Thursday.

The brief, written by attorney James W. Penrose, asked the court to reject a petition to reconsider its decision that the Legislature could pass new or increased taxes by a majority vote to fund education, rather than two-thirds to finance the public schools.

"The opinion (of the court) should not be withdrawn because the crisis that precipitated it is otherwise likely to recur," Penrose wrote.

Twenty-four Republican legislators and some private trade groups have filed a petition asking the court to re-hear the case and to withdraw its opinion. They do not want it to set a precedent for solution of any future deadlocks.

Attorneys for the Legislature must file their response to the re-hearing request by Monday. Lorne Malkiewich, director of the Legislative Counsel Bureau, said the re-hearing petition is moot because the Legislature was able to pass an $836 million tax bill Monday night with two-thirds approval. The bill also included $1.6 billion for school aid.

In a brief filed today, Gov. Kenny Guinn maintained there is no need for the Nevada Supreme Court to re-consider its decision. Guinn said the issue is moot since the Legislature has "fulfilled its constitutional obligations." The Guinn answer, prepared by Attorney General Brian Sandoval, said the petition for re-hearing was defective.

"The primary purpose of a petition for rehearing is to inform the court that it has overlooked an important argument or fact, or that it has misread or misunderstood a statute, case or face in the record," Sandoval wrote.

In this case, Sandoval said, the 24 lawmakers never make any claim that the court overlooked or misunderstood a fact. In addition, he said the lawmakers cannot raise new issues in a rehearing petition.

Chief Justice Deborah Agosti, who wrote the 6-1 decision in the case, allowed the Nevada State Education Association, the Clark County Education Association, the Education Support Employees Association of Clark County and the Washoe Education Association to file their "friend of the court" brief.

Nevada's Constitution requires the state to fund public education and there is also a constitutional requirement that any tax must be approved by a two-thirds vote. Fifteen Republicans in the Assembly blocked any two-thirds approval on a variety of different tax packages.

The court ruled that the two-thirds requirement must give way when funding of the public schools is in jeopardy.

Penrose, in his brief, called the 15 Republicans "the radical minority." He said they are raising issues in their petition for re-hearing that were never presented in the first case. And as a result, they are barred from arguing that their votes were diluted when the court ruled only a majority was needed in the 42-member Assembly and 11 in the Senate.

Penrose said it was the majority whose votes were diluted by the operation of the two-thirds.

While the tax plans were being debated and defeated, the bill to finance education was being held up.

Penrose wrote: "The schools of this state must continue to operate. Any interpretation of the Constitution that would result in a shutdown of the schools or any other essential governmental service is simply unacceptable, and the court properly so concluded."

Despite the passage of the tax package and the school aid bill, the damage is still affecting the educational system, the unions said.

"By way of example only, many of the most talented prospects for employment in Nevada schools have been compelled to accept employment in other states because school districts in Nevada could not make binding offers of employment," the teachers' unions' brief said.

"Those employees are gone and our students are not going to have the benefit of their services," said the brief. "Many of them will be replaced by less-qualified substitute teachers until permanent employees can be hired."

Penrose said the hundreds of reading specialists and teachers of gifted and talented students who were reassigned to regular classroom duties in Clark County are "to our understanding not going to return to their specialties until other teachers can be found to replace them."

He also noted the Nye County School District had to delay opening of its schools for two weeks and it has not changed that position since the school funding bill was passed.

"These are examples of the damage that has been done by a few anarchists in the Nevada Legislature," the unions said.