Wednesday, Sept. 17, 2003 | 11:42 a.m.
CARSON CITY -- The Nevada Supreme Court today declined to reconsider its decision that set aside a constitutional amendment requiring the Legislature to pass new taxes with a two-thirds vote.
The original decision came in the middle of a state budget impasse that eventually ended with the Legislature approving an $836 million tax plan.
In a 6-1 decision today, the court called the case moot because of the Legislature's action.
Chief Justice Deborah Agosti, who wrote the majority opinion, said the initial opinion "did not eliminate the two-thirds requirement, but it did indicate that the supermajority provision could not be used to avoid other constitutional duties."
The court set aside the two-thirds requirement this summer after Gov. Kenny Guinn asked the justices to intervene in the legislative impasse before the Legislature approved a new tax package.
Today's ruling said the Supreme Court stands ready to review future cases if the Legislature ever attempted to pass a tax increase by simple majority.
Attorney General Brian Sandoval argued the case for Guinn and said the decision was limited to the situation in the 2003 Legislature.
"The application of this decision to future Legislatures is extremely unlikely," Sandoval said. "In order for this decision to be relevant, there have to be identical facts and circumstances that existed in 2003."
Assembly Minority Leader Lynn Hettrick, R-Gardnerville, who led his caucus in opposing the $836 million tax increase, could not be reached for comment. A group of Republicans asked for the rehearing.
There is still a suit pending by Republican legislators in the 9th U.S. Circuit Court of Appeals on this issue. Professor John Eastman, of the Chapman School of Law in California, who represents the GOP, said he would recommend that a petition be filed with the U.S. Supreme Court to overturn today's ruling by the Nevada court.
Assemblyman Bob Beers, R-Las Vegas, who opposed the tax package, referred to the issue today as the "Ignore the Constitution case." He said he did not know what to make of the court's decision.
"From my travels in the past couple of weeks, voters are paying attention and are angry that the court has ordered the constitution to be violated," Beers said. "They consider it a dangerous form of lawlessness."
The Supreme Court, in its decision today, said it was forced to strike a balance between the constitutional amendments that the Legislature must fund public education and there must be a super majority to approve taxes.
"The primary interest supported by permitting the Legislature to suspend the supermajority requirement in this case was nothing less than the constitutional mandate to fund public education," wrote Agosti.
She said the request for a rehearing was moot because the Legislature passed the tax plan by a two-thirds majority vote. There was a deadlock in the Assembly when the majority fell one vote short of the needed 28 votes for the two-thirds. But Assemblyman John Marvel, R-Battle Mountain, changed his vote in the second special session and the bill passed.
"In this case, once the Legislature adopted revenue-raising legislation by a two-thirds supermajority in order to fund the public school system and balance the state's budget, the rehearing petition became moot," said the majority opinion.
The ruling recognized that this could be a repeat in the future and said, "If the Legislature were to increase or raise taxes in the future under simple majority rule, this court could have ample opportunity to review that action."
The supermajority provision in the Constitution was approved by the voters twice.
But Agosti said the voters were not informed "of the problems the amendment would cause if a minority of legislators disagree with the majority over the level of services to be provided to Nevada citizens."
She said the court could "not determine how the voters intended to resolve such a conflict" as occurred in this case.
Justice Bill Maupin, who dissented, said a rehearing should be granted. He said he took issue with the majority ruling that the voters did not understand that a stalemate might take place between appropriations and taxes.
"The initiative was vetted through two elections and we should not from this vantage point presume to say what the voters of this state knew or did not know," said Maupin.
He said the majority opinion "now indicates that the original decision had discreet application to the limited circumstances of the 2003 legislative session."
archive
