Ninth circuit refuses to rehear Nevada tax case

The Ninth Circuit Court of Appeals has denied a petition asking judges to rehear a petition for an injunction in the Nevada 2003 Legislature tax case.

The federal court case was filed by a group of legislators and businessmen following the Nevada Supreme Court decision setting aside the two-thirds majority required to raise taxes.

John Eastman of Chapman University School of Law tried to take the case to the U.S. Supreme Court, asking it to wipe the decision off the books, but was rejected in March.

He also sought an injunction from federal district court preventing Nevada legislators from trying to use the simple majority ruling in the future, but the judge ruled the issue was moot.

He said they wanted the federal court to rule that "not only couldn't they use it again, that they had already taken illegal action."

The court ruled the issue moot because the Legislature didn't actually pass a bill by simple majority but, instead, found the constitutionally mandated two-thirds majority. Eastman went to the Ninth Circuit Court in April, but was rejected. He asked for a rehearing, but the appellate court denied his request last week.

Eastman said that "pretty much does it" for the case unless lawmakers decide they are going to try use that simple majority ruling in the 2005 Legislature.

"We'll be ready to go next February if it looks like they're going to do it again," he said.

Legislative Counsel Bureau Director Lorne Malkiewich said the bid for rehearing had to be considered a longshot because the original ruling by the Ninth Circuit panel was without dissent. He said since the simple majority wasn't used, there isn't a conflict for the federal court to decide.

"Courts want to decide a case when they have a real, live, current conflict," he said. "If you don't have it, the court is likely to do what was done in this case."

Malkiewich also said the ruling last week should end of the case.

Contact Geoff Dornan at


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