Two dozen Nevada legislators and a group of state taxpayers file federal lawsuits alleging that the state Supreme Court's decision violated their federal due process rights. (The brief filed by the plaintiffs is here; other legal info, provided by the Claremont Institute, which is working on behalf of the plaintiffs, is here.) An en banc hearing of all eight federal district judges in Nevada will take place Wednesday morning by teleconference, a procedure Eugene Volokh believes may be unprecedented.
The plaintiffs' brief cites Coleman v. Miller, a 1939 Supreme Court decision which ruled that, in a legislative vote to ratify a federal constitutional amendment, when the vote to ratify ended in a tie, the lieutenant governor was qualified (as the state constitution allowed) to cast the tie-breaking vote. The court said: Had the LG's vote been disallowed, the votes of the representatives who sided with him would have been diluted, violating their federal due process rights. The plaintiffs argue the Coleman ruling applies here:
Although Coleman involved a federal constitutional amendment, several courts, including the Ninth Circuit, have recognized that a State legislature's failure to comply with its own procedures may violate federal Due Process.
At least the federal judges may entertain oral arguments, something the Nevada Supremes failed to do.
Eugene remains unconvinced that there's a federal constitutional issue here, and I'm somewhat inclined to agree with him. As he notes, the remedy should be political -- remove the justices from office, vote out the representatives who support a decision that violates the state constitution, get a referendum on the ballot that would repeal the taxes, etc. I tend to agree. While it would be satisfying on one level to see these judicial jerks taken down a peg or 12, a successful suit could invite all sorts of federal meddling down the road ... here or somewhere else.
Speaking of recalls ...
A place on the list might need to be reserved for the recently elected attorney general of Nevada, Brian Sandoval. Sandoval filed a brief on behalf of Kenny Guinn before the state supremes, and may well argue on behalf of the state before the federal court. As with most Nevada AGs, Sandoval is a shill for the bureaucracy and the ruling elites, rather than the citizens of Nevada. For instance, when antitax activist Dan Burdish asked the AG to enforce a provision in state law which requires the governor to submit a state budget which "sets forth separately the cost of continuing each program at the same level of service as the current year," Sandoval ruled that Burdish had no standing to make such a request (correct), but then he went all weaselly, saying that governors have great leeway on issues related to taxes and budgeting anyway. Guess they don't have to obey the law. So is Mr. Sandoval's client the governor, the Legislature, or the state constitution and the voters who live under its jurisdication?
The Wall Street Journal also weighed in on the Nevada Supreme Court today (reg. required), saying our justices would make Florida's proud.
Ending the impasse
No matter what happens in federal court, it's now clearer than ever that one thing and one thing alone is preventing the Legislature from passing a budget and a tax plan: The hidebound insistence of Assembly Speaker Richard Perkins, D-Mandalay Bay, and his patrons in the gaming industry on imposing a gross-receipts tax on non-gaming businesses in Nevada. My friend and colleague Steve Sebelius, the Review-Journal's unabashedly left-wing political columnist, would dearly love to see the GRT enacted. But Steve thinks the Supreme Court's decision sucks, and has said he'd rather see no new taxes at all than a tax plan passed by an unconstitutional margin.
The Assembly tax bill that led to the federal lawsuit included a 0.1 percent GRT. The Senate defeated a proposal that would have mirrored the Assembly tax bill Monday, 19-1. Message sent.
But not received? Senate Majority Leader Bill Raggio and Assembly Minority Leader Lynn Hettrick have said for months that a tax bill which raises record-setting levels of new revenues could get a two-thirds vote in both houses if it included no GRT. That point has been proved, what, a zillion times now? Until Perkins (and the casinos, and Guinn) cave, we'll be deadlocked from now till Kingdom Come. Get used to it.