The Libertarian

Vin Suprynowicz
Website: Liberty Book Shop
In July, 2003, the Nevada Supreme Court in “Guinn v. Legislature” had the nerve to dismiss a constitutional amendment requiring a two-thirds legislative vote to raise taxes. Although that amendment had been ratified by an overwhelming majority of Nevada voters, a cynical and politicized high court dismissed it as a mere “procedural” technicality. The court gutted Nevada’s constitution like a fish.

Then, given a chance to “unbind” the state from this precedent in the challenge widely known as “Guinn v. Legislature 2” -- after the justices had accomplished their goal of enabling the largest tax hike in state history (one which not so coincidentally gave the judges a 29 percent budget increase of their own), the justices still refused to back down, declaring the voters had been too stupid to know what they were doing when they made it harder to raise taxes!

In the ensuing three years, not a single one of these arrogant black-robed culprits has dared face the voters -- till now.

One after another of these traitors and oathbreakers chose to retire -- former Supreme Court Chief Justice Deborah Agosti, the author of the Guinn decision, citing “health reasons,” thought she seems plenty healthy to sit on cases for the same pay now that she’s an election-proof “senior judge,” a privilege she would have been denied had she faced the voters and lost.

Now, finally, after three full years, Justice Nancy Becker becomes the first of the 6-1 majority that gave us “Guinn v. Legislature” as a perverse and permanent precedent to test the waters, seeking to determine whether voters still remember the way the court gave voters the one-finger salute.

So it is only right and just that her role in that historic ruling should be front and center in this campaign, as primary voters this month will find Ms. Becker challenged by Southern Nevada District Court Judge Nancy Saitta and Family Court Judge Nicholas Del Vecchio, as well as local attorney Thomas F. Christensen.

In the summer of 2003, the Nevada Legislature was deadlocked in special session. Those who favored vast increases in taxes and spending had cleverly OK’d all their other spending bills, purposely leaving school funding for last. The goal was to corner the minority conservatives who opposed the big tax and spending hikes -- holdouts dubbed “irrelevant” by Gov. Kenny Guinn -- arguing that only by raising taxes could the schools be fully funded, that if the conservatives voted “No,” now, they must be “anti-child” and “anti-education.”

But because the voters in 1994 and again in 1996 had OK’d by a whopping 71 percent majority a constitutional amendment calling for the two-thirds supermajority for tax hikes, that minority of 15 courageous Republicans, led by stalwart Assemblymen Lynn Hettrick and Bob Beers, were able to hold fast.

Gov. Guinn, who sought the tax hikes in the first place, asked the state Supreme Court to intervene. The court could easily have refused, or -- at worst -- ordered the Legislature to reopen debate on the spending bills already OK’d, finding a way to fund state government out of current revenues, which were already 11 percent higher than the year before.

Instead, in a stunning break with legal precedent, as well as with honesty and common sense, the court issued a ruling curiously similar to that outlined in an amicus brief filed by a radical leftist teachers union.

The court ruled the two-thirds tax-hike requirement was in conflict with the constitutional mandate that schools must be fully funded. So, the court ruled, the Legislature could ignore the two-thirds supermajority requirement, and hike taxes to fund schools by a simple majority.

The problem was, none of this was true. The tax hikes were unnecessary, shown by the fact they’ve been generating embarrassingly huge surpluses ever since. The state Constitution never says schools must be “fully” funded, which could mean just about anything. As amended by the voters in 1938, Article 11, Section 2 of the Nevada Constitution states: “The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months of every year. ...”

There were $800 million left unallocated out of expected 2004-2005 state revenues as of July 10, 2003, even if no new taxes were created. Not only was that more than enough to “establish and maintain (a school) in each school district at least six months of every year” -- the only constitutional mandate -- in fact the state had more than enough to boost school spending by 10 percent across the board, merely by going back and trimming the budget hikes larded onto other programs, back to this same 10 percent level.

And even if there were some perceived conflict or “tension” here, the common doctrine is that a later constitutional amendment overrules an earlier one, since voters knew about the earlier provision -- and the likely impact on it -- when they enacted the latter.

To this assertion that the two-thirds mandate was a mere “procedural” requirement which could thus be ignored, UCLA law professor Eugene Volokh replied: “If the court is willing to nullify ‘general procedural rules’ so that it can order the legislature to fund education, why stop at the two-thirds supermajority? What if it turns out that the Legislature can’t even get a simple majority for a tax increase? Under the court’s reasoning, it should nullify the 50-percent-plus-1 requirement, too -- after all, the simple majority requirement is also a mere ‘procedural requirement that is general in nature.’ ”

In an Aug. 2 letter, Carol L. Chaffee, a staff attorney in the civil division of the Nevada Supreme Court, resigned over this decision.

“Last month’s proceedings ... undermined my confidence in the court’s integrity,” Ms. Chaffee wrote. “Although I have not always agreed with the court’s decisions -- and never expected to -- I always trusted that they were untainted by political influence.

“I am no longer sure that that is true. I am sure, however, that this court’s opinion in Guinn v. Legislature was not founded on a fair, measured and reasonable interpretation of law. ... I do not understand it, and I cannot justify it on any judicial basis. ... I am also sure that the Education Associations and their counsel could not have so precisely tailored their amicus brief to address this court’s specific concerns based only on the court’s public announcement and its order directing an answer. And that disturbs me even more profoundly than the court’s opinion.”

When I asked her to respond to these allegations, Justice Becker had a staff member return my phone calls, saying the judge would not comment on this “personnel matter.”

Nevada voters now face a “personnel matter” of their own -- whether rotten Justice Nancy Becker should be retained.

As the Review-Journal editorialized three years ago, “Six members of the state’s highest court have ruled that restraints on government power in the state constitution may be disregarded if they inconvenience lawmakers. That is so outrageous and so offensive, voters who feel strongly about the integrity of the state constitution have little choice but to consider efforts to strip these justices of their seats. ... All six in the majority -- (including) Nancy Becker -- deserve to face the public’s wrath.”

Ms. Becker should not be allowed to hide behind “It’s a personnel matter,” any longer. Those who approve of “Guinn v. Legislature” are now free to say so by casting a ballot for this judge. Those who have questions ... should now ask them, loudly and often.