Panel calls for dismissal of Supreme Court budget suit

The Legislative Counsel Bureau on Monday called on the Supreme Court to dismiss the governor's petition for a writ of mandamus, saying the courts have no business trying to mandate a political decision -- especially when the special session is still under way -- and are barred from interfering by the separation of powers between the legislative and judicial branches of government.

The 52-page document was filed in response to Gov. Kenny Guinn's request for the high court to order lawmakers to resolve the budget-tax impasse. It says the petition is premature because lawmakers have continued to negotiate a compromise. It says the petition itself even agrees the state budget is balanced because there is enough existing tax revenue to fund the spending plan as long as the funding bill for public schools isn't approved. The next checks for schools aren't due to the districts until Aug. 1.

The high court is expected to make some kind of decision in the case as soon as Thursday.

The response by Legislative Counsel Brenda Erdoes argues the court has no business trying to rule on a political question.

"Although this court has not yet had occasion to opine directly as to the propriety of issuing a writ of mandamus to compel the Legislature to legislate, this court has stated that it is improper to issue a writ of mandamus to control the governor's exercise of his constitutional duties," the response states.

And it says any attempt by the courts to coerce or control the Legislature in exercising its legislative functions would violate the doctrine of the separation of powers between the three branches of government.

Senators Terry Care, D-Las Vegas, and Mark Amodei, R-Carson City, made many of the same arguments in a separate response to the petition. They argued the Legislature is still in session trying to find a compromise, and that lawmakers who "exercised due care and acted in good faith" aren't guilty of violating any laws.

But Attorney General Brian Sandoval's office, arguing on behalf of the governor, said separation of powers isn't the issue because it is the court's job to determine whether lawmakers violated the constitution by not passing both state and education budgets along with a tax package that will fund them.

"Given the constitutional crisis that exists, the court must now step in to interpret and enforce the Nevada Constitution," Sandoval's brief states.

It argues there is enough money in existing tax revenues to fund the state budget so there is nothing illegal about what the Legislature has approved so far. But it says there isn't enough money to allow passage of legislation to fund public schools because that demands more money.

It argues the Legislature has decided how much money is needed to fund operations of state government and how much is needed to fund the schools -- some $860 million over the next two years.

"By passing the general fund budgets and establishing the amount needed for the DSA (schools), the Legislature has already decided how much revenue is needed," the brief states. "The only issue left to them is which types of revenue are needed to fund that amount."

Clark and Washoe County school officials went a step farther, saying lawmakers have put "the entire constitutionally mandated system of public education for Nevada's children at risk."

The teachers' union joined in, calling on the court to order lawmakers to comply with the state constitution "by enacting a tax bill to balance the budget.

The hold-out Republicans submitted their own counter-petition, asking the court instead to open the budget so lawmakers can reduce it. Their brief also asked the court to order funds from the general fund to pay for school operations until lawmakers pass a new education budget.

"The court should declare that the general non-school appropriation bill passed by only a majority vote is void because the entire state budget has neither the taxes to pay for it nor two-thirds support of both houses," the petition states.

A group of businesses led by the Nevada Taxpayer's Association, builders, retailers and chambers of commerce also argued the only action the court can take is to toss out the budget since, once school funding mandated by the constitution is set aside, there isn't enough tax revenue to support the state spending plan.

And Nevada Concerned Citizens rejected the argument the constitution requires lawmakers to increase revenues.

"It is inappropriate to restrict the scope of a special session to revenue raising only," the group argued. They said the court should deny the writ of mandamus and "find that the governor unconstitutionally restricted the business of the special sessions by limiting the business of such sessions to revenue raising."

Finally, Assembly Majority Leader Barbara Buckley, D-Las Vegas, and members of the Senate filed separate supplemental responses arguing they should be dismissed from the suit. Senators pointed out that house did pass a tax bill sufficient to fund the entire budget.

Buckley argued that Assembly Republicans have done everything possible to frustrate efforts to balance the budget and increase taxes to meet the needs of the state. She said only they should be left in the litigation.