Supreme Court defends tax ruling

Five members of the Nevada Supreme Court issued a 29-page opinion Wednesday attempting to explain and defend the court's July ruling on the legislative tax battle.

That ruling, which said Nevada's constitutional two-thirds majority requirement to raise taxes must "give way" to the constitutional mandate lawmakers fund education, has been harshly criticized by conservatives. They had demanded, instead, that the court order Gov. Kenny Guinn and lawmakers reopen the state budget.

The opinion, signed by Chief Justice Deborah Agosti and Justices Bob Rose, Nancy Becker, Myron Leavitt and Mark Gibbons, dismissed the petition filed by tax opponents seeking a rehearing. They said in essence there's no need for a rehearing because the Legislature passed a tax plan funding the budget by the two-thirds supermajority of each house, rendering the issue moot.

John Eastman of Chapman College in California, who represented the anti-tax group, said he would urge his clients to take the issue directly to the U.S. Supreme Court in an attempt to erase the opinion.

Before deciding the issue was moot, the five members of the court went to lengths to explain how and why they reached their conclusion.

The original petition was filed by Guinn asking the court to order lawmakers to provide the revenue needed to fund the state budget -- specifically public education. A counter petition was filed by Republican lawmakers who opposed higher taxes. They demanded the court, instead, extend the two-thirds majority requirement to the budget as well as taxes because the two are dependent on each other.

The court decided there was a conflict in Nevada's constitution because it requires two-thirds of each house to raise taxes, but only a majority to approve spending. With only Justice Bill Maupin dissenting, they ruled July 10 that the two-thirds requirement to raise taxes must "give way" to the constitutional requirement that lawmakers fund education. They authorized the Legislature to proceed under simple majority rule.

The clarifying opinion issued Wednesday says the two-thirds requirement, added to the constitution in 1996, "resulted in legislative paralysis."

"The essential issue was whether the supermajority requirement could be improperly used by a few to challenge the majority's budget decisions, thereby preventing the Legislature from performing its other constitutional duties," the opinion says.

The five justices decided the tax opponents, who had just enough votes to prevent a two-thirds approval of tax increases, were doing just that. And because existing taxes didn't raise enough money to fund education, they reasoned the 15 Assembly members were preventing the state from funding public schools.

"To avoid an impasse harmful to public education, we determined that the supermajority provision could not be improperly used to avoid majority rule on budget appropriations," the opinion states.

The opinion also said the tax opponents weakened their position by first arguing the constitutional two-thirds requirement takes precedence over the simple majority provision governing appropriations, but then asking a rehearing on grounds the court can't order one part of the constitution -- the supermajority -- to yield to another -- the mandate to fund education.

While they ruled the issue moot because lawmakers resolved the budget fight, the opinion says the damage has been done.

"The two-thirds supermajority provision, as passed, created the potential for an absolute budgetary stalemate in the Legislature. That potential was realized this year and has done significant damage to public education."

In separate opinions, justices Miriam Shearing and Maupin disagreed with the majority. Maupin maintained his opposition to the original opinion, saying rehearing should have been granted to erase the controversial July 10 opinion.

But he and Shearing both disagreed with issuing the lengthy clarifying opinion.

As Shearing put it: "I do not agree that it is appropriate, in responding to a petition for rehearing, for this court to attempt to answer public criticism of this court's decision or to criticize the constitution or laws of this state."


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