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Friday, July 11, 2003
I am forced to agree with Eugene Volokh that the Nevada Supreme Court has gone off its rocker. In this decision, the court ordered the Nevada legislature to fund public education. That's right, the court ordered, by writ of mandamus, that the legislature fulfill its constitutional duty. This is wrong on so many levels.


The situation is this: Nevada is full of short-sighted voters, who enacted by referendum a constitutional amendment requiring a 2/3 majority of the legislature in order to pass an increase in taxes. The Nevada constitution also requires that the state provide for and fund public education, and requires a balanced budget. These things all work fine together when you have budget surplusses, but that currently is not the case. The legislature failed to fund public education before the start of fiscal year 2003-04, so the schools are in a crisis. The treasury cannot disperse funds, so the schools cannot prepare for the upcoming school year.


In response to all this, the Governor sued the legislature, seeking essentially a declaratory judgment that it was not fulfilling its constitutional obligations. The Nevada Supreme Court went beyond the relief that was requested, however, and ordered the legislature to fund education. Even more remarkably, the Court suspended the constitutional requirement that tax increases must be passed by a 2/3 majority.


Eugene's main complaint is that the court reasoned that the 2/3 majority requirement for raising taxes was a procedural requirement that should give way to the substantive requirement to fund education. He asserts that such reasoning leads to a slippery slope under which fundamental procedural requirements - for instance that a simple majority pass bills - could be trumped. I agree that this is a problem, but it's not the most fundamental problem with this opinion.


The main problem is that this is a political question; the Supreme Court of Nevada should not be in the business of ordering the Nevada Legislature to do anything. Why? Because what if the Nevada legislature refuses to comply? The Governor didn't even ask for mandamus in this case. What if the Governor decides that a simple majority revenue bill is unconstitutional, and refuses to sign it? Will the court order him to sign the bill? These are discretionary duties of the separate branches of government, and one branch cannot simply order another to do its duty.


Nevada was already in a crisis. If the legislature doesn't do something soon, the 2003-04 school year will be wrecked. However, it is not for the courts to fix the problem. By flouting the separation of powers, the Court has turned what was simply a fiscal and possibly an educational crisis and created a constitutional crisis. Furthermore, as Volokh points out, this is an extremely dangerous precedent. I am usually of the opinion that a court should resolve the dispute that is before it, but this is far beyond the pale. I cannot think of a good solution to this problem. I guess the legislature should petition for rehearing, or the court should sua sponte recall its decision. Maybe nobody will care all that much, and the order will be followed, and the schools will be funded. Somehow, that may be even worse than if the legislature were just to ignore the order, as it allows this aberration to become precedent.