U.S. high court asked to consider Nevada tax decision

Wednesday, Jan. 21, 2004 | 9:55 a.m.

Republican lawmakers are asking the U.S. Supreme Court to overturn a State Supreme Court decision that gave the Legislature permission last year to pass tax increases without a state constitutionally approved two-thirds vote.

The 41-page petition, which included strong language against the state court's July 10 decision, was submitted Tuesday by John Eastman, director of the Center for Constitutional Jurisprudence at the Chapman University School of Law's Claremont Institute in California.

Eastman asked the high court to consider three questions of constitutional law: Whether the decision violates a clause of Article 4 of the U.S. Constitution; whether due process was violated by the court's interpretation of its state constitution; and whether the ruling dilutes the Legislature's vote and nullifies the votes of those who supported the state constitutional amendment to require two-thirds vote instead of a simple majority to pass new taxes.

Eastman also lashed out at the State Supreme Court, saying in his conclusion that its decision "has generated 'public outrage' among Nevada citizens, as well it should, given the court's contempt for its own citizens and the constitution they have established to reign in their government."

"This (state court ruling) is a time bomb ticking and it could go off at the next Legislature," Eastman said today. "It is obvious some want this to remain on the books because it obliterates the two-thirds requirement."

He said the parties should know by March or April whether the U.S. Supreme Court will take the case. If it does, the case could be heard by fall and a decision could be rendered in January or February 2005, "before the Legislature kicks into high gear."

Nevada Assemblyman Bob Beers, R-Las Vegas, said "it is absolutely necessary to take this to the Supreme Court."

"The State Supreme Court told us it was OK to ignore the constitution, which is our foundation. It sets a dangerous precedent," Beers said.

The Nevada Supreme Court ruled 6-1 that higher taxes could be passed without a two-thirds majority if it was necessary to fund public education. The Assembly then approved a tax plan 26-14, two votes shy of the required two-thirds vote. Assembly Speaker Richard Perkins, D-Henderson, declared the measure passed, based on the Supreme Court opinion.

Later the Assembly and Senate passed another tax plan -- $836 million in tax increases -- each by two-thirds votes. The State Supreme Court declined to reconsider its ruling saying the legislative action made the point moot.

Eastman disagreed, saying that the state court needed to vacate the measure if it did not intend for it to be used at future sessions.

In October Republican state lawmakers told the 9th U.S. Circuit Court of Appeals that there is a "reasonable likelihood" that the Legislature in the future will pass new taxes or increase taxes without the two-thirds vote.

Nevada voters approved a constitutional amendment in 1996 to require a two-thirds vote for new or increased taxes.