Nevada Supreme Court Quietly Reverses Its Decision That Authorizes Suspension of Constitutional Procedural Requirements:

I blogged about that earlier July 2003 decision here (the earlier decision itself is here; thanks to commenter Joe Zwers for the pointer):

Nevada appears to be in the middle of a fiscal crisis: Its constitution more or less requires a balanced budget (art. 9, sec. 2(1)). There's a shortfall. The Legislature hasn't funded the budget. Various state functions, including the educational system, are right now (as of July 1) unfunded. And the Nevada Constitution (art. 4, sec. 18(2), enacted by voter initiative in 1996), requires a two-thirds vote to increase taxes, which has contributed to the budget deadlock. (I have no independent knowledge of this; I'm paraphrasing the court's statement of the facts.)

The Nevada Supreme Court has (1) ordered the Legislature to enact a budget, and (2) suspended the operation of the two-thirds majority requirement. That's right, the two-thirds majority requirement is right there in the Nevada Constitution:

2. Except as otherwise provided in subsection 3, an affirmative vote of not fewer than two-thirds of the members elected to each house is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.

3. A majority of all of the members elected to each house may refer any measure which creates, generates, or increases any revenue in any form to the people of the State at the next general election, and shall become effective and enforced only if it has been approved by a majority of the votes cast on the measure a such election.

But the Nevada Supreme Court has held that the Legislature must ignore this requirement.

The Nevada Constitution does mandate (art. 11, secs. 1, 2, and 6) that the legislature create and fund public schools, though it's silent on the level of funding that the legislature must provide. Most state constitutions do impose such an affirmative obligation on the state government, and many have been read as providing affirmative judicially enforceable rights; I do not object to that conclusion here. But the Nevada Supreme Court has held that the constitutional provision requires the state legislature to fund the schools through means that are themselves unconstitutional.

The Court recognizes this, and provides the following reasoning:

When a procedural requirement that is general in nature prevents funding for a basic, substantive right, the procedure must yield. Here, the application of the general procedural requirement for a two-thirds majority has prevented the Legislature as a body from performing its obligation to give life to the specific substantive educational rights enunciated in our Constitution.

But this makes very little sense. First, the court just assumes that procedural requirements are somehow less important than substantive rights. How so? Some of the most important rules in our constitutions — majority vote for most laws, the unanimity requirement on criminal juries (in many jurisdictions) or at least the supermajority requirement (in all jurisdictions), the procedural constraints on which chamber may initiate tax legislation, which chamber may approve appointments, and so on — are procedural. These are tremendously important; courts may not waive them just in order to serve the constitution's substantive commands. Rather, American constitutions require that substantive entitlements be provided while respecting the prpcedural rules. [For more, see here.]

Today, in a case in which the proponents of an initiative wanted the court to relax a different procedural state constitutional requirement for circulation of initiatives, the court said no, holding that the requirement had to be enforced strictly. And in the course of this, the court said:

We next address the parties' arguments about whether a "strict adherence" or "substantial compliance" standard should apply to evaluating whether the committee satisfied Article 19, Section 2(4)'s mandate. The opponents argue that strict adherence should apply here, where the constitutional requirement at issue is designed to protect the initiative process. The committee, on the other hand, advocates for a substantial compliance standard to apply in cases that do not involve constitutional "authentication" requirements. We conclude, as set forth below, that Article 19, Section 2 must be adhered to strictly.

And since the committee has made a distinction between different types of constitutional procedural requirements, urging this court to adopt a looser standard of compliance for some constitutional requirements, while maintaining a strict standard for constitutional authentication requirements, we take this opportunity to clarify Governor v. Nevada State Legislature, wherein this court, in construing the Nevada Constitution, distinguished between "procedural" and "substantive" requirements, concluding that procedure must yield to substance if the requirements conflict. We expressly overrule that portion of the opinion. The Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision.

Well, better late than never, I suppose, though I hope the "should be read as a whole, so as to give effect to and harmonize each provision" doesn't give the court wiggle room to repeat the Governor v. Legislature (also known as Guinn v. Legislature) error in the future.

David Walser:
So, what is the current status of Governor v. Legislature? Did the ligislature pass a tax increase by less than the constitutionaly mandated super-majority? If so, do Nevada taxpayers have standing to sue for a refund of the unconstitutionaly enacted tax? If I were a tax attorney practicing in Nevada, this would look like a wonderful opportunity.
9.11.2006 9:21pm
That's a really interesting decision. It seems to me, however, that an order from the state judiciary to the state legislature to pass a bill exceeds any reasonable limit of its authority. Anyone an expert on Nevada political question doctrine law?
9.11.2006 11:57pm
Joe Zwers (mail):
Here is the original decision
Guinn v. Legislature Decision
9.12.2006 12:52am
The NV Supreme court didn't order the legislature to pass the tax bill, they merely overrode the constitutional requirement for a 2/3 majority. I was outraged by the decision at the time, but as I remember there were grumblings about recalling or voting out the miscreants. Maybe that had an affect.
9.12.2006 12:55am
Kazinski, I disagree. The majority opinion states "we grant the petition as to the Legislature of the State of Nevada and direct this court's clerk to issue a writ of mandamus directing the Legislature to proceed expeditiously with the 20th Special Session under simple majority rule." Campbell School District, the Wyoming case that they cite, is similar "We order that the legislature shall achieve that compliance not later than July 1, 1997."

Only Maupin's dissent/concurrence makes it clear that it is inappropriate to grant mandamus against the legislature.
9.12.2006 1:23am
Eugene Volokh (www):
Thanks, Mr. Zwers! Updated the post accordingly.
9.12.2006 1:37am
But did they reverse themselves? In the first case, they decided in favor of the government; in the second case, judging from the fact that the plaintifs "wanted the court to relax a...procedural state constitutional requirement for circulation of initiatives", they also decided in favor of the government. Real reversal, or just shamelessly favoring government?
9.12.2006 2:01am
Russ Meyer (mail):
Tyranny of the judiciary is still tyranny.

The court here thinks it's beyond the law, even the constitution, which is supposedly the highest law in the land. Well, apparently not if it interferes with what a court thinks.
9.12.2006 2:25am
Consigliere (mail):
I'm going to have to do some searching tomorrow to find out if the legislature acted following issuance of the writ. It looks like what may have happened was that the Court stepped outside the lines as a matter of perceived practicality to break the deadlock, knowing it would have the opportunity to overrule the decision later based on its docket. Interesting turn of events.
9.12.2006 4:15am
This article has a good summary of the events following the originally decision, as well as a cogent analysis of possible federal challenges to it.


Thanks for digging this up, I missed reading this egregious case the first time around.
9.12.2006 4:31am
logicnazi (mail) (www):
The reason to read the substantive right as overriding the general procedural is that otherwise there is no substantive legal right at all. In effect the constitutional guarantee of education/education funding becomes no more than a statement of purpose or an ideal the state is supposed to aspire towards.

If 1/2 (or 1/3) of legislators can always act to stop funding for education then the 'right' of education might have just stuck in the preamble with no different effect. Since a cannon of constitutional interpratation is that one shouldn't interpret clauses as being obviously without effect it seems reasonable to assume this right must be enforceable in some manner.

I mean surely you support this principle in terms of federal constitutional interpratation. Just because a bill has satisfied the procedural features the constitution requires for it to become law shouldn't shielf it from being struck down for violating some other constitutional clause.

Still without further knowledge of the Neveda constitution I am inclined to think that this was the wrong way to go about reading substance into this right. Instead a better solution would likely be to strike down any spending by the state not prusuant to a spending bill which properly supports this right. However, while this seems like the legally better option I understand the reluctance of the supreme court to cause people to die by cutting off police salaries or other vital state expenditures.
9.12.2006 7:13am
Don Miller (mail):

If 1/2 (or 1/3) of legislators can always act to stop funding for education then the 'right' of education might have just stuck in the preamble with no different effect.

The Nevada Legislature was never prepared to stop funding education. The discussion was about the amount of funding education would receive.
9.12.2006 11:38am
markm (mail):
"The reason to read the substantive right as overriding the general procedural is that otherwise there is no substantive legal right at all. In effect the constitutional guarantee of education/education funding becomes no more than a statement of purpose or an ideal the state is supposed to aspire towards." This would be true only if the legislature wasn't spending money on anything else. I very much doubt that there are so many substantive constitutional rights to funding, at such high levels, that it would be impossible for the legislature to balance the budget without raising taxes. Of course, some of those spending cuts are going to hurt various special interests, but that's the whole point of constitutional limitations on the legislature - to force them to do what isn't politically convenient...

If I was a Nevada legislator, I'd be looking at Nevada Supreme Court salaries as the first place to make cuts right now - and trying to get the required supermajority for impeachment.
9.12.2006 2:43pm
The main problem is the decision to make distinctions between substantive and procedural rights and create a priority. To say "The reason to read the substantive right as overriding the general procedural is that otherwise there is no substantive legal right at all." Is clearly no answer.

The substantive right exists to the extent it is not a situation where it does not come into conflict with procdural rights. The procedural right exist to the extent it is not a sitaution where it comes into conflict with substantive rights.

It is no less true to say "The reason to read the procedural right as overriding the general substantive right is that otherwise there is no procedural right at all."

All that really is occuring is that the Nevada Supreme Court is considering "procedural" rights to be less important than "substantive rights." But they do not cite any authority for that. It is clearly a difficult claim to make for the Federal Constitution, see Federalist papers. I don't see why the expression of the interest of people in controlling taxes through a procedural right is somehow less important than controlling education through a substantive right. I have little doubt that the Nevada court would have ruled the same way if the tax right was protected by a substantive right, such as a categorical prohibition on levying some types of taxes, that the educaiton would have won over the taxes. It is just the personal opinion of the judges.
9.12.2006 3:28pm
Howard257 (mail):
As a Nevada resident myself, I went ballistic over the original decision in Guinn v. Legislature in 2003. The good news is that three of the SCONV members who made the decision, including the execrable CJ Deborah Agosti, are no longer on the bench (one of them croaked shortly afterward). The bad news is that their replacements aren't a whole lot better.

The really bad news is that the people of Nevada just bent over and took it without a peep.
9.12.2006 3:55pm
DaveN (mail):
As an attorney practicing law in Nevada, I can say that there was a great deal of consternation over this particular decision. But rather than comment on the inanity of the decision, I will instead provide a bit of factual background, both before and after the decision:

1) The Legislature had deadlocked over the tax increase, necessary to pass a balanced state budget, which is also required under the Nevada Constitution.

2) The Republican controlled State Senate had passed the tax bill by a vote of either 14-7 or 15-6, so it clearly had a constitutional 2/3 majority.

3) The Democratic controlled Assembly had failed to pass the tax increase by the narrowest of margins: 27 yes, 15 no (with 28 being a 2/3 majority).

4) Thus, the Supreme Court "knew" that by ruling as it did, there were sufficient votes to pass the tax increasse the Republican Governor (and most Democrats) wanted.

5) After the decision came out, one of the 15 "no" votes in the Assembly (a crusty non-genarian from rural Nevada named John Marvel) switched his vote, so the tax increase actually passed the Legislature by 2/3 votes in both houses.

6) In the 2004 election, there was no discernable impact on races because of the Supreme Court's decision, although Chief Justice Deborah Agosti did retire rather than face the voters over it.

7) However, this year, State Senator Bob Beers (one of the minority in the State Senate) used the issue, among others, to campaign as the most fiscally responsihle candidates for Governor--coming in second in the GOP primary. Additionally, Assemblywoman Sharon Angle used the issue in part to run for Congress, where she came in second in the primary for a fairly safe GOP seat by 424 votes.
9.12.2006 4:03pm
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