August 08, 2003

Judicial Nonsense in Nevada

Michael New comments the Nevada Supreme Court ruling which supported Governor Kenny Guinn's decision to sue the state legislature for failing to approve more spending:

With nearly all of them mired in fiscal crises, most states have balanced their budgets with a mixture of creative accounting, budget cuts and tax hikes. Nevada Governor Kenny Guinn took a highly unusual approach to resolving his state's fiscal shortfall. Faced with an uncooperative legislature, he proceeded to sue state lawmakers legislature for failing to pass a budget that would increase taxes by more than $860 million.

This strategy was a rousing success for Guinn and the legislature's tax hikers. The state's high court gave his approach a stamp of approval. In a 6-1 decision handed down last Thursday [July 10], the Nevada Supreme Court held that the state legislature might disregard a constitutional provision requiring a two-thirds majority to increase taxes. The legislature subsequently enacted over $800 million in tax increases.

Now, standing back a bit, certain aspects of this turn of events seem unsurprising. It is easy to see why those seeking to raise taxes would want to suspend the supermajority limit. Supermajority tax limits have effectively blocked tax increases in many places. During fiscal 2002, the ratio of spending cuts to tax hikes in the six states with comprehensive supermajority limits was approximately 36 to 1. In the rest of the country that ratio was about 1 to 1.


What makes the Nevada Supreme Court's decision more worthy of attention than these other abuses of judicial power is that both the decision and remedy set troubling precedents. The decision itself is flawed because the court cited the need to underwrite public education as its justification for suspending the limit. However, the Nevada Constitution does not specify a particular level of support for education.

As a result, the decision may give future courts the license to suspend any and all state level fiscal limits if a majority of justices think that even one constitutionally mandated function of government is underfunded. This clearly undermines the constitutionally mandated separation of powers. It effectively gives the judiciary the power to make appropriations decisions that were previously the responsibility of the legislature.


There might be attempts to impeach judges who demonstrate such callous disregard for the clear language of their state's constitution. However, removing a Supreme Court judge from office in Nevada requires a two-thirds supermajority of both chambers of the state legislature. Unfortunately, this is one supermajority requirement the Nevada Supreme Court would probably uphold.