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July 14, 2003, 9:10 a.m. Throwing Out the Rules The Nevada supreme court tries legislating. By Timothy Sandefur

s the constitution inconvenient? That's what the Nevada supreme court thinks. In a 6-1 decision handed down Thursday, the Court held that the state legislature may disregard a constitutional provision requiring a 2/3 majority to increase taxes. The Court declared that "when a procedural requirement that is general in nature prevents funding for a basic, substantive right," such as public education, "the procedure must yield."

The case arose when Governor Kenny Guinn sued the legislature for failing to pass a budget which increased spending by $1.6 billion dollars, and increased taxes by more than $860 million. Guinn first convened two special legislative sessions to consider his budget, but limited their discussion in an important way. Since Nevada had already spent almost all its projected income, any more spending would force lawmakers either to cut spending elsewhere, or raise taxes. But the governor's order prohibited them from even discussing spending cuts.

A handful of legislators had promised their voters that they would not raise taxes. They opposed the new budget, because, as one legislator said, "we cannot pass an education budget without the revenue to support it. That would be like writing a check, when we know we don't have the money in our account."

Since 2/3 of the legislature must approve any tax increase, these leaders were able to stop the new taxes. But rather than reach an agreement with the people's representatives, Governor Guinn filed suit against them, arguing that since the constitution requires the legislature to fund public schools, the court should simply order the budget passed.

The court agreed, and ordered the legislature to pass the budget under simple majority rule. Since "the procedural two-thirds revenue vote requirement in effect denies the public its expectation of access to public education," said the court, "the two-thirds requirement must yield to the specific substantive educational right."

This is an unprecedented and extreme ruling, which ignores fundamental principles of democratic government. The whole point of having a legislature is so that representatives can debate and reach agreement on important issues. Their arguments and decisions may not please us, but in the end, we are freer by following this "procedure." That's why legislatures have always been held immune from lawsuits like these. Parliament was immunized from such lawsuits centuries ago, as William Blackstone explained, "in order to protect its members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown."

The Court's decision also violates the separation of powers. Forty years ago, the Nevada supreme court called separation of powers "the most important single principle of government declaring and guaranteeing the liberties of the people." But this decision lets courts and governors decide when tax increases are acceptable and when they're not. Taxing and spending are quintessential legislative functions, not jobs for judges.

Most shocking is the Court's dismissal of the 2/3 requirement as "mere procedure." Constitutions are written to create procedural rules: requiring search warrants, or "due process of law" are procedural requirements. Such procedures are important because they protect our rights. Sometimes they are inconvenient or frustrating, but they ensure that government follows clear, predictable rules. If courts can erase procedural rules, then why can't it erase the "simple majority" rule as well? Suppose only 49 percent of the legislators vote for a tax increase. Can the Court order the few holdouts to vote for it, because their votes are "in effect denying the public its expectation" of some taxpayer-funded service?

The court eliminated the 2/3 rule because the state's constitution says the legislature must support public schools. But the state constitution includes a host of mandatory provisions — the word "shall" appears in 216 separate sections of the state's constitution, such as "the Legislature shall provide by law for organizing and disciplining the Militia of this State, for the effectual encouragement of Volunteer Corps and the safe keeping of the public Arms." Can litigants now seek court orders forcing the legislature to encourage gun ownership?

"Inconveniences will follow from following the Constitution as written," said a New York judge a century and a half ago. But "if...under color of construction...[we] may depart from that which is plainly declared, the people may well despair of ever being able to set a boundary to the powers of the government. Written constitutions will be worse than useless."

This decision undermines the most cherished principles of American government, and erases an entire clause of the state's constitution. Fortunately, the Nevada constitution sets forth another "finely wrought" way for voters to control their government: Article II section 9 allows the voters to recall supreme-court justices. Let's just hope courts don't decide that's a "mere procedure."

— Timothy Sandefur is a College of Public Interest Law Fellow at the Pacific Legal Foundation, where he co-authored a friend of the court brief in Guinn v. Legislature.