Nevada SC finds the Nevada Constitution unconstitutional

A few years ago, the citizens of Nevada passed a ballot proposition which amended their Constitution by requiring a 2/3 super-majority for the legislature to approve a tax increase. Their SC just threw out the Constitutional super-majority requirement, in a decision involving a legislative dispute over school funding.

It is true that funding the schools is also a Constitutional requirement. However, there was no showing that the schools couldn’t be adequately funded while staying within the 2/3 super-majority requirement. E.g., it seems likely that the state could have cut spending in some area that wasn’t consitutionally required. Or, perhaps a lesser amount of school funding would have adquately satisfied the state’s requirement to “fund the schools.”

Even if there were an unavoidable conflict between the two constitutional requirements, it’s not clear that the school funding requirement should take precedence over the supermajority requirement.

Eugene Volokh has a thorough legal review here (scroll down to 6:41 pm) ISTM that the Nevada SC’s “legal basis” is almost beside the point. Note that the decision was much broader than it needed to be, as I understand the first cite. The SC didn’t just allow a one-time tax increase. They entirely threw out the super-majority requirement. The decision shows contempt for direct democracy. ISTM that courts are often more willing to overturn a ballot proposition than a law passed by the legislature. It’s an elitist, anti-democratic attitude.

We have debated here theories of judicial review. On a high theoretical level, there’s something to be said in favor of various approaches. But, down in the real-world pits, the Nevada SC conducted a blatantly unprincipled judicial review. They didn’t like the 2/3 requirement, so they just blew it away. This case illustrates the slippery slope when courts make law.

Wow! That’s amazing! It seems hard to believe that a properly-passed constitutional amendment can be tossed aside so easily, especially when it wasn’t limited to school funding at all. If the Nevada voters don’t want to pay more taxes, why should the courts say they must? I guess it’s “for the children”!

This is indeed an absurd decision, if for no other reason than later amendments are supposed to trump preexisting language.

But more to the point: one wonders what would happen if, absent the supermajority amendment, Nevada’s legislators could not reach even a simple majority consensus on their budget. Would the court then order a less than majority vote would suffice for the budget? Would it bypass the legislature altogether and just fashion a budget on its own? What does that say about the rights of Nevada’s citizens to chart their own destiny?

BTW, december, you can directly link to any of Volokh’s posts – the time-stamp is also a direct link. The analysis you cited to is available here, no scrolling required.

Yes, but according to the court, it’s a rule of statutory interpretation in Nevada for a general provision to yield to a specific substantive right, which I suppose education is in Nevada.

So, correct me if I’m wrong, but you’ve got a legislature at an impasse through the regular session and two special sessions, and you’ve got no money allocated for the upcoming school year.

I guess I like the dissenting justice’s opinion, though, which is essentially let the political process play out for another month and see where it takes us.

This one makes no sense to me either. As december points out, there’s no inherent conflict between the two Nevada Constitution provisions, but even if there was, the whole point of an amendment (to anything) is that it changes the pre-existing document, and not the other way around, as Dewey’s said.

I think the supermajority amendment is unwise, but it’s the right of the people of Nevada to be unwise in this manner if they damned well feel like it; this is America, dammit. I can’t see how their Supreme Court has a leg to stand on.

I’m sure this one will get appealed to the US Supreme Court, which will set them straight.

Which is itself absurd. The supermajority provisions are no more general than the education requirement. If anything, the supermajority requirement is more specific. Nothing in the Nevada constitution requires a specific dollar-amount level of funding for schools, much less a given level of taxation to support such funding. On the other hand, the Nevada constitution requires a very specific threshold of votes to pass a tax increase: 2/3 of the legislature. That is a crass, ad hoc justification on the part of the Nevada Supreme Court that doesn’t stand up to the most cursory scrutiny.

Actually, I doubt it will.

The Nevada courts are presumed to be the absolute authority on Nevada state law, including the interpretation of the Nevada state constitution. Thus, this decision is presumed by the federal courts to be a correct application of Nevada law.

Thus, to prevail in the federal courts, one would have to prove that the decision violates some aspect of federal law or the federal constitution. I’m not sure on what basis they would do so. Due process, at least on the procedural end, wasn’t violated – all sides has their day in court. The republican form of government clause of Art. IV is a possibility, but given its historical use that is unlikely as well. Short of removing the judges from the Nevada bench (by election, impeachment, or whatever), the people of Nevada are probably SOL.

As usual, when one reads the actual opinion, one finds that the “facts” being flung about with gay abandon by pundits and blogsters are not valid.

The Court did not “find the supermajority amendment unconstitutional” – they ruled, as Dewey noted, that when two elements of a statute, including the state constitution, conflict, the more general one must give way to the more specific one.

The law provides that the schools be funded; the Legislature was unable to muster a 60% majority for their funding. The Court ordered the Legislature to go back to work and fund the schools. If they cannot do it with the 60% majority, its provisions are to be superseded by another provision of equal rank – that the schools be funded, because that is a specific mandate. How they go about funding them is their choice – but they are relieved of the 60% mandate for raising taxes in this one specific circumstance by the conflicting provision that they pass a bill funding schools.

A similar circumstance exists with regard to the Federal Constitution: the states are restrained from impeding interstate commerce by the delegation of its regulation to the Federal government in Article I. But they may impede interstate commerce to or from their state as regards alcoholic beverages in particular by the provisions of Amendment XXI. The specific provision overrides the general.

I think it’s actually fairly easy: While it is correct that an amendment changes the pre-existing document, it changes it merely in the aspects it is specifically concerned with. If it indirectly violates other premises that the constitution established, these have to be changed first. They can by definition not be superceded by the new amendment, since the amendment does not address these premises at all.

I’m sure the Nevada Supreme Court made the proper decision. They probably know more about Nevada Constitutional Law than any of you do.

I think the newer provision takes precedence. Prof. Volokh wrote:

By that, the constitution would over time become a meaningless document, full of chaff which doesn’t mean what it means, because some later amendment, without intent by the voter, infringed on rights they granted themselves earlier. It is silly to assume that voters would declare they are forfeiting rights when they are actually talking about an entirely different issue.

december, what you said, and what HumanStromboli said and I repeated, are two standard principles of jurisprudence. According to how I read HS, Nevada law requires application of the specific-overrides-general rule.

I want to stress that there was no finding of unconstitutionality here – merely the construction of two conflicting provisions of the Constitution. The court could have ordered that the schools be funded within the existing tax rates, and whatever has to go to make way for that constitutional provision, well, it’s not mandated by the state constitution as the school funds are.

Nor did it order the Legislature to act in violation of the supermajority requirement. It said that if they decide taxes must be raised in order to fund schools and they are unable to achieve that supermajority, they are free to comply with their constitutional mandate to fund schools by simple majority, because that mandate is on equal standing with the 60% majority to raise taxes mandate.

Narrow construction, gentlemen. A principle of strict constructionism.

Deciding to rebuild a highway and raise taxes to cover it still requires the 60% – the provision’s not been thrown out. It merely cannot be used to evade another constitutional mandate.

Who am I to believe about how to properly interpret and apply the Nevada Constitution? December, or the Nevada Supreme Court… December, Nevada Supreme Court… tough choice.

I don’t know anything particular about Nevada law, and I don’t want to give you that impression, **Polycarp **. I was merely stating the Nevada rule of interpretation that its S.Ct. cited. And, to be honest, as **Dewey Cheatem Undhow ** notes, I’m not sure why the right to education (via funding in the budget) is a specific substantive right in Nevada, when a democratically enacted amendment limiting the legislature’s ability (or, should I say, ease) to take property from the citizenry is considered a general provision.

Anyway, as to the rest of your post, I think you make a good point. I’m not sure it’s as big a deal as this thread’s tone is making it seem. In fact, reading both the majority and the dissent, the consistent message seems to be “HURRY THE HELL UP AND MAKE A DEAL!” not “You didn’t act, so we’re going to make the budget for you” The majority specifically says it’s not doing, nor will it do, that.

Anyway, I think the dissenting justice makes much sense when he/she says:

This is also ridiculous. The Nevada SC did not find it “unconstitutional”, it simply interpreted a provision’s effect on another provision.

I wish Court bashers would actually bother to go through the entire decision before calling it a “judicial hijack of power” or some other such nonsense.

I’m amazed that you don’t see how blatantly your first sentence contradicts the second. The court is saying “if you really, really have trouble hitting the supermajority requirement, you have to ignore it.” I mean, look at the sentence where they actually granted relief:

A writ of mandamus commands an action on the part of another governmental entity, usually (but, as here, not always) a lower court. The court is ordering the Nevada legislature to proceed under simple majority rule. They are indeed ordering the legislature to “act in violation of the supermajority requirement.” **

This is not strict constructionism. Strict constructionism would give effect to all the relevant constitutional provisions. It would recognize that, given the way the Nevada constitution is written, the question of the dollar amount of funding for the public schools is a political question into which the courts ought not tread. In short, it would have left things alone.

FTR, here are the relevant (per the court) provisions of the Nevada State Constitution dealing with education, all under Article 11 of that document:

Notice that the budget must first be presented “in the manner prescribed by law” to trigger the support and maintenance requirement. This would seem to indicate that Section 6 (the only section directly applicable to the issue at hand) only requires that a budget, when passed and presented, must have some appropriation for education. It does not appear to mandate that the budget actually be passed on any given time frame. **

Bollocks. Taxes raised go into the general fund. Such a construction effectively eliminates the 60% requirement because such funds will inevitably be spent on some “constitutionally mandated” (and I use that term loosely) item or another.

I agree that the title of the OP is misleading.

That doesn’t mean the decision isn’t a judicial hijack of power.

The flaw in the opinion of the Supreme Court of Nevada is the assumption that the failure to pass an appropriations bill equates to the inability to pass an appropriations bill. They fail to understand that the failure to meet a super majority requirement is as much the fault of the plurality as it is the recalcitrant minority.

It is not impossible for a supermajority to occur. The provisions are not in conflict. But to occur, a supermajority will require the willingness of the majority Democrats to meet sufficient demands of the minority Republicans blocking the passage of the appropriations bill. Instead, the Democrats simply went to their hired guns, the 6 Democrats on the Nevada Supreme Court. That court, instead of imposing a solution such as requiring the appropriation of funds at the same level as the previous bi-ennium, manufactures a conflict that doesn’t exist, elevates intransigence on both sides of the conflict into impossibility, and allows the will of the people to be frustrated.

The solution is simple, and likely to be initiated quite quickly. An initiative placing in the state constitution a specific statement that the supermajority requirement applies to all appropriations bills, even when funding education, and that the Supreme Court of Nevada is specifically precluded from waiving the requirement.

I hate it when state courts play politics. Living now in Ohio, I have to deal with it all the time.

I’ve said it before and I’ll say it again. Democracy simply doesn’t work.