Taxes, Education Clash in Nevada

Published November 1, 2003

The state of Nevada is in the midst of a constitutional tug-of-war pitting Silver State taxpayers against the state’s education bureaucracy. For the moment, the state’s top court has given the edge to the bureaucracy.

The conflict stems from the inability of Governor Kenny Guinn to secure a tax increase to pay for his school spending plan. The state constitution requires that the state fund education … and it also requires a two-thirds supermajority in each house to pass tax increases. While the Governor was able to persuade the legislature to pass the education budget earlier in the Spring, he could not garner enough votes to raise the taxes to pay for it.

After two special sessions, Guinn sued the legislature in the state supreme court, asking for an order to force the legislature to fund education.

“(T)he Legislature has failed to comply with the mandatory, non-discretionary provisions of the Nevada Constitution requiring it to fund education and balance the budget,” Guinn said in a brief filed with the court.

On July 10, by a 6-1 vote, the state supreme court obliged and went one step further, ordering the legislature to pass a tax increase by a simple majority vote instead of the two-thirds required by the constitution. It reasoned, among other things, that the substantive education provisions of the state constitution should be given more weight than the procedural supermajority requirement.

“The two-thirds supermajority provision, as passed, created the potential for an absolute budgetary stalemate in the Legislature,” the majority ruled in Guinn v. Legislature. “[J]udicial resolution of the constitutional conflict was necessary, so that the Legislature could perform its constitutionally mandated duties.

“To avoid an impasse harmful to public education,” the court continued, “we held that the Legislature could suspend the supermajority rule in favor of a vote by simple majority … in order to fulfill its obligations to fund education and balance the budget.”

Also in a 6-1 ruling, the court declined on September 17 to rehear its decision.

Carole Vilardo, executive director of the Nevada Taxpayers’ Association, was disappointed with the court’s decision. “Denying the rehearing was not a surprise to me, but it was a disappointment, particularly in light of the fact that in the original decision they provided a remedy that had not been asked for.”

Dissenting Opinion

Justice A. William Maupin issued the lone dissent to the majority’s ruling. “(T)he people of this state had every right to make it more onerous for the Legislature to create new revenue streams for the operation of government,” he wrote.

Tim Sandefur, a fellow in the College of Public Interest Law at the Pacific Legal Foundation, which filed an amicus curiae brief in the case, agreed with Maupin: “The Court erased an entire clause of the state’s constitution–a clause added by the people in two separate elections, by overwhelming majorities.”

John Eastman, director of the Claremont Institute Center for Constitutional Jurisprudence and professor of law at Chapman University School of Law, questioned the court’s conclusion that the Nevada constitution contains substantive education guarantees. “The Nevada Constitution mandates that the state support one school in each district for six months per year–a minimal constitutional obligation that was easily met by the existing funding.” An attorney, Eastman represented 15 legislators who petitioned the Nevada Supreme Court to re-hear the case.

The sufficiency of education funding is the purview of the legislature, said Eastman, not the courts. “Prioritizing between education and other governmental services is the essence of legislative decision-making,” he explained.

Sandefur agreed with Eastman’s separation of powers concerns. “There are at least four centuries of traditional common law protections for the Legislature’s right to decide when to tax or not to tax the people,” he noted. “But rather than reining in their spending appetites, Governor Guinn and the majority of the State Legislature wanted to tax the people even more. When they found that they didn’t have the votes, they simply decided to change the rules, and the Court went along. The whole point of having a Legislature and Constitutional procedures is so that you don’t have arbitrary rule.”

Dangerous Precedent

The legislators represented by Eastman sought reconsideration of the decision because of the dangerous precedent its ruling could set for Nevada and other states.

In California, which has education and supermajority constitutional provisions similar to Nevada’s, the state superintendent of public instruction has already threatened a similar lawsuit because of the budget stalemate in Sacramento.

“I cannot in all good conscience stand by and watch political conflict disrupt the education of the children of California,” said Superintendent Jack O’Connell. “While the circumstances in Nevada were clearly different than what we are facing here in California, the heart of the argument that funding education ought to take precedence over a procedural requirement rings true.”

California managed to pass a budget before O’Connell’s threatened lawsuit commenced, but the threat gave credence to concerns that the precedent set in the Nevada case could extend beyond that state’s borders.

“Usually, when government does something rash, the proper solution is a political campaign. But in this case, the non-political branch made a sudden and undemocratic change in the clear governing procedure of the state, and in the process violated Nevadans’ right to have their votes count and to have their Constitution obeyed,” commented Sandefur.

Tax increases may not be the only unpleasant outcome from the Nevada supreme court’s decision. Eastman fears something more important is at stake: “Constitutional government, and the right of the people to government by consent, is in peril.”

Chris Atkins is director of tax and fiscal policy for the American Legislative Exchange Council.

For more information …

The full text of the Nevada supreme court’s decision in Guinn v. Legislature is available through PolicyBot. Point your Web browser to, click on the PolicyBot icon, and search for document #13337.