Wednesday, March 3, 2004 | 8:36 a.m.
CARSON CITY -- The U.S. Supreme Court should consider whether the Nevada Legislature could pass increased taxes without the constitutional two-thirds majority, lawyers for Republican lawmakers said Tuesday.
A legal brief from GOP Senate and Assembly members filed Tuesday to the nation's high court said, "Leaving state courts 'free and unfettered' to interpret their own state constitutions and laws does not require that this court turn a blind eye to willful disregard of those constitutions and laws."
The legislators went to the U.S. Supreme Court trying to overturn a state Supreme Court ruling that sought to break an impasse in last year's Legislature over a tax increase. An increase, needed to balance the state's budget, required a two-thirds vote in both the Senate and Assembly, and had repeatedly failed by one vote in the Assembly.
When the new fiscal year began without a budget, Gov. Kenny Guinn sued, and the Nevada Supreme Court ruled that a tax increase could be passed to fund education without the two-thirds vote required in the Nevada Constitution. The court said the constitutional requirement to provide support for the public schools took precedent.
The Legislature eventually passed a tax bill with the two-thirds vote. But the Nevada court ruling is under attack by Republicans and other groups that opposed the tax increase.
Nevada voters in 1994 and 1996 ratified a state constitutional amendment that it requires a two-thirds majority for new or increased taxes.
John Eastman, director of the school of law at Chapman University in California, who is representing the 24 GOP lawmakers, asked the U.S. Supreme Court to review the case. Joining Eastman in the petition is former U.S. Attorney General Edwin Meese.
Chapman said a conference by justices of the U.S. Supreme Court is set for March 29 and a decision on whether it will even hear the case could be released on April 1. A suit is also pending in the 9th U.S. Circuit Court of Appeals and arguments are scheduled April 15 at Stanford University.
Eastman said "extraordinary abuses of judicial power" occurred in the ruling by the Nevada Supreme Court. He said there is a "reasonable likelihood" that the Legislature again in the future will try to approve taxes without the two-thirds majority to fund education.
Lawyers for the Legislature have asked the court to refuse to review the issue, arguing there was no actual controversy. The $833 million tax bill in the end was passed by a two-thirds majority.
But Eastman and his clients are worried the issue could be raised again and the Nevada decision creates a precedent.
"This case thus involves more than mere speculation about the Legislature's future intent," the brief says. "Indeed, plans are already under way to impose new education-linked taxes." It cites a newspaper story where school trustees are talking about a new tax source to pay for classroom construction.
"Negotiations over those taxes will continue to be effected by the Nevada court's ruling unless this court grants review," the brief said.
Friend of the court briefs have been filed by the Pacific Legal Foundation in behalf of about one-third of the California Legislature, the Initiative and Referendum Institute and from national and Nevada taxpayers groups.
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