Wednesday, July 16, 2003

The Courts: Nevada v. Property Rights

Last week the Nevada Supreme Court ordered the Nevada Legislature to ignore the state's constitution and raise taxes in order to fund government-run schools. There's been a budget impasse for some time now over the schools, with the legislature resisting Governor Kenny Guinn's efforts to raise taxes in order to avoid cutting school funds and upsetting the teachers unions (who are the real interested party here, not the students). Guinn asked the Court for a writ compelling the legislature to ignore the Constitution's requirement that a two-thirds vote is necessary to raise taxes.

Eugene Volokh and Rick Henderson have produced excellent posts on this dispute, and I'm especially impressed with Eugene's identification of this case as a matter of property rights v. "education" rights. The Nevada court's ideological error stems largely from this paragraph from their decision:
When a procedural requirement that is general in nature prevents funding for a basic, substantive right, the procedure must yield. Here, the application of the general procedural requirement for a two-thirds majority has prevented the Legislature as a body from performing its obligation to give life to the specific substantive educational rights enunciated in our Constitution.
This is obvious nonsense, since most constitutions and laws are "procedural" requirements designed to protect fundamental individual rights. Government-financed education is not one of these rights, but a social welfare benefit provided by the state at the expense of fundamental property rights. Yet here the Court found that property rights—protected by the two-thirds tax increase rule—is too "general" in nature to withstand the pressure of financing the education system.

The Court could have ordered the legislature to simply cut school funding enough to satisfy current budget resources. But the Court probably figured that would be too hard and unpopular, so they tried to take the easy way out. This may be another example of Sandra Day O'Connor's influence on our judicial system.

All is not lost, however. On Monday, the chief U.S. district judge in Nevada issued a restraining order halting the Nevada Supreme Court's order. This morning, in a procedure I can't recall seeing before, all of the District of Nevada's active judges will hold an en banc hearing via teleconference to review the Nevada Supreme Court's decision.

Volokh and Henderson are squeamish by the thought of using federal constitutional grounds to strike down the Nevada ruling. I have no such qualms. The Nevada Supreme Court acted to deprive Nevada property owners of their substantive right not to be taxed outside the clearly expressed procedure's of the state constitution. To hell with federalist niceties—when a state government violates basic rights, their actions are entitled to no deference from federal authorities who have an independent duty to protect those rights under the federal Constitution. Furthermore, the U.S. Constitution guarantees to every state a republican form of government, a doctrine deliberately breached here by the Nevada court. That confers more than ample authority on the federal courts to remedy this violation.

That said, I do agree with Volokh that there is a political remedy for what happened: boot the Nevada Supreme Court out of office. Nevada provides two such procedures: the legislature can remove a justice for "reasonable cause," a standard far easier to meet than for a regular impeachment; and the voters can submit petitions to force a recall election. Hopefully one of these procedures will be attempted.

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