Las Vegas Sun

March 28, 2024

Court may be forced to step in

The impasse over taxes and spending has the three branches of government on a collision course with a constitutional crisis.

The executive branch's Gov. Kenny Guinn and Attorney General Brian Sandoval are preparing to ask the judicial branch, the Nevada Supreme Court, to step in and force the Legislature to fulfill its constitutionally required duties: balance the budget and fund schools.

"Obviously, this is not a desirable thing to have at the end of the legislative session and several special sessions," Richard Morgan, dean of the Boyd School of Law at the University of Nevada, Las Vegas, said. "It is territory that is completely unprecedented.

Speculation on what the court could do as early as Tuesday was rampant Sunday in the halls and offices of the Legislative Building. Legislators on both sides of the deep divide over taxes and budgets say they don't want to see the Supreme Court step in, although leaders on both sides say they see potential benefits from a judicial intervention.

Legislators agree, as do observers close to the Supreme Court justices, that the outcome of such an intervention is far from certain. But most outline several of the possible scenarios:

William Dressel, president of the National Judicial College, an independent, nonprofit institution based on the University of Nevada, Reno campus, said he knows the seven Supreme Court justices well, and believes they are watching the unfolding drama in Carson City carefully -- and with trepidation. His college provides training for judges throughout the United States, including Nevada.

He said the justices will look at both what they must do, and the limits that precedent provide.

"The separation of powers is something they do not take lightly," he said. But faced with constitutional requirements and a petition from the executive branch, "they need to look at what remedies are available."

"What are their options? That is the question," Dressel said. "They really don't cherish this role."

Morgan also knows the seven who may decide the fiscal future of the state. He agrees with Dressel on most points.

"The court could say is has no jurisdiction to do anything -- that this is the job of the Legislature. It could also say that the Legislature has failed to fulfill its constitutional responsibility, and therefore the court is going to order something to implement the constitutional requirement."

The difficulty for the court is that the Legislature is empowered to hold hearings and make findings of fact, a role not suited to the judiciary, whose role is to interpret the laws crafted by the lawmakers.

Intervention has happened in other states over other issues of financing, often involving education, Morgan said. But those courts have generally shied from dictating specific remedies.

"I would think any court would be extremely reluctant to do that," he said. "I think any court would enter this fray extremely cautiously and very deferentially."

Morgan said neither he nor any other observer can predict the outcome.

"I don't think anybody knows how the court is going to react in this unprecedented circumstance," he said.

Bernie Anderson, the Democratic majority whip and chairman of the Assembly Judiciary Committee, agrees.

"This is Marbury versus Madison kind of stuff," Anderson said, comparing the looming constitutional crisis in Nevada to the 1803 U.S. Supreme Court decision that positioned the court as the final arbitrator of what is and isn't constitutional.

"The history and government teacher in me is just fascinated by the implications," said Anderson, a Washoe County high school teacher.

Some Democrats point out that six of the seven Nevada Supreme Court justices are Democrats, and suggest that they might lean toward a solution that favors a tax increase and spending on the public schools.

Among that camp is Assemblyman Tom Collins, a cowboy-hat wearing Democrat from North Las Vegas. Collins said he hopes that in the absence of a legislative solution, the court would impose the original tax package submitted by Gov. Guinn.

"There could be a lot worse than that," Collins said. "I don't know what could happen. The court could impose whatever they wanted.

"I would hope that the court would at least match the $870 million (in new taxes passed by the Republican-majority Senate), but they could say: 'Just keep riding the same horse,' " that is, simply stay within existing revenue, Collins said.

"Then we'd all be in a big bind," he added.

The Republican holdouts in the Assembly, however, argue that flat-funding isn't a bad scenario at all. Assemblyman Ron Knecht, R-Carson City, and a leader of the holdouts, said the "worst-case scenario" is the tax package one vote short of passing in the Assembly.

He would like the court to force reopening of the budget and deeper cuts, or, in the language of the holdouts, "reductions in enhancements" to the budget.

"They could send it back to us with some sort of direction, or they could do that themselves," he said. "They could increase existing taxes, they could adopt something else. I don't think they have that power, but we'll find out."

Knecht said a positive scenario for his camp would have the court upholding the two-thirds majority required in the Legislature for tax increases under the 1996 constitutional amendment that was pushed by Jim Gibbons, who is now a member of the Nevada delegation in the U.S. House of Representatives.

The worst case would have the court backing some tax increase -- a move that Knecht said would destroy the intent of the Gibbons amendment and would consistently force taxes upward.

"That would be a terrible precedent," he said. "It would completely nullify the express will of the people."

Other legislators said they believe the court will likely order the Legislature back in session. Anderson said he could envision the court keeping the legislators in session during the day and in jail at night until a revenue package and school funding is passed by both houses.

The Assembly's majority leader, Barbara Buckley, D-Las Vegas, said she does not expect the court to impose a tax-revenue solution -- at least not right away. But Buckley, an attorney, said the court could take the school-budget issue separately.

"The court might very well say that the D.S.A., the education budget, is law," she said.

Knecht, among other holdouts, said they have no problem with the Distributive School Account, the kindergarten-through-12th grade funding now in limbo. The rest of the budget, however, is in their cross-hairs.

"My considered opinion is that the probabilities and contingencies favor our position if we go to court," he said. "Nobody likes to roll the dice, but I'm not afraid of that outcome."

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