Thursday, July 17, 2003
Copyright © Las Vegas Mercury

Local View: Taxes chainsaw massacre

By Chuck Gardner

The plan of the Bush administration, to shift social burdens to the states by lowering federal taxes and services, was working. The goal of the Nevada casino industry and its puppet governor, to respond by raising state taxes on everybody but the casinos, with only a nominal increase on them for cosmetic purposes, was also working. When anti-tax fanatics in the Republican governor's own party threatened to hold this up, the governor asked the state high court to come in for a mop-up operation. What the court did may come to be known as the taxes chainsaw massacre.

When Nevada Supreme Court Justice Deborah Agosti asked Gov. Kenny Guinn and the Legislature to brief the court on whether the two-thirds majority required by the Nevada Constitution to raise taxes might be unconstitutional, it looked like the bluff might work. The last thing the Republican anti-tax holdouts wanted was to lose the two-thirds majority barricade they were fighting behind to scuttle the budget.

The problem was, no one took Agosti seriously. Besides the absurdity of declaring a constitutional provision unconstitutional that had been approved by the people twice by popular initiative, the two-thirds requirement wasn't even the problem. The problem was in pushing a budget through without lining up the votes from your own party to fund it. It's so much easier to spend money you don't have than to raise it.

Some saw the lawsuit as a smokescreen to cover Guinn's failure of leadership within his own party. Besides, what would happen if you changed the rules in the middle--more accurately, at the end--of the game? The tax package at hand was chiseled out with the intent of satisfying two-thirds of the legislators. If you sent them back to chisel out a new one that needed only a simple majority, all hell might break loose. Maybe there's a majority for a new tax that wasn't on the table before. Why not revisit the governor's original $980 million proposal or even round it off to a clean $1 billion? The Legislature was one vote short of two-thirds to fund the schools by Aug. 1. Starting from scratch with new rules at the last minute might even make the situation worse.

Everybody and the cat said "they can't do that." Even the dean of the Boyd School of Law at UNLV said publicly that dumping the two-thirds requirement wasn't plausible.

Upholding a three-fifths vote requirement, the U.S. Supreme Court reasoned in 1971 that the "Federal Constitution itself provides that a simple majority vote is insufficient on some issues," that "the Bill of Rights removes entire areas of legislation from majoritarian supremacy" and the "constitutions of many states severely limit the power of the legislature to levy new taxes...thereby insulating entire areas from majoritarian control."

So they called her bluff. Or what they thought was a bluff.

The problem is, every time you say this supreme court can't do something, that's exactly what it goes out of its way to do. It's funny that way.

Explaining that the two-thirds provision worked fine when the state had surpluses, the court noted that the state's economy "changed drastically," assumed without analysis that the "imminent fiscal emergency" was the fault of the two-thirds requirement, and threw it out.

Early news reports said this is a one-time deal. Nothing in the decision supports this. "We conclude," said the court, "that an irreconcilable conflict exists with respect to the relevant constitutional provisions." Besides, how do you declare something unconstitutional temporarily? Should anyone (mis)interpret the decision this way, what would happen next session when all the governor has to do is cry to the Supreme Court at the verge of another imminent fiscal emergency? The scary scenario is when no one knows how many votes are required anymore.

The first and most cardinal rule of constitutional interpretation the court failed to mention--never declare anything unconstitutional unless there is absolutely nothing else you can do. As dissenting Justice Bill Maupin reminded everyone, not one of the 65 parties to the suit even asked the court to do this.

All talk about an appeal is nonsense. The federal courts do not decide disputes between branches of state government.

There's one other little problem.

Concluding his decision of March 1, 1943, that a person may not be convicted with evidence obtained in violation of the Constitution, U.S. Supreme Justice Felix Frankfurter wrote, while the war for freedom raged around the world: "The history of liberty has largely been the history of observance of procedural safeguards." Four years later another justice wrote that "matters of procedure constitute the very essence of ordered liberty under the constitution." Free elections, our republican form of government, the Constitution and democracy itself are such "matters of procedure." Though a dictator may build a school or hospital, it is not the school or hospital of a free people.

At 2 p.m. on July 10, 2003, the Nevada Supreme Court announced a different approach. Because the two-thirds majority required to raise taxes is a mere "procedural requirement," it is trumped by the substantive requirement to fund education. "When a procedural requirement that is general in nature prevents funding for a basic, substantive right, the procedure must yield."

Apply this formula to the substantive requirement to act as commander-in-chief vs. the mere procedural requirement to hold elections and see where this gets you.

Chuck Gardner is a Las Vegas attorney.