Rule by lawyers replaces the rule of law Vegas slick

In Ontario, when taking a budget or supply vote to the legislature is just too much trouble for the politicians, they simply have the Lieutenant-Governor sign off on an order-in-council. In the Silver State, if a governor can’t get his budget through the Assembly and State Senate, he simply sets the lawyers on them.

That is how the Nevada Supreme Court came up with a curious decision in the case of Guinn v. The Legislature of the State of Nevada et al., handed down a couple of weeks ago. The court held that one part of the State constitution (specifically, the requirement to create and maintain a public school system) trumped another (the requirement that any tax increase be passed by two-thirds majorities in the Assembly and Senate) — or in other words, Article 11, Sections 1, 2 and 6 of the supreme law of the State is really supreme, and Article 4, Section 18 (2) is, er, not quite as supreme.

This folly has its immediate origin in a budgetary crisis in Nevada. Governor Kenny Guinn introduced budget proposals in January at a time the state was facing a US$700-million current account deficit. His solution? To bump spending by US$1.3 billion, and jack up taxes by US$860 million. The state legislature refused to pass the budget.

In a sensible polity, that would have been the point at which one of two things happened: in a Westminster-style parliament the government would fall; or in an American-style congress the legislature would force the executive branch to come up with a compromise budget that would pass. In Nevada in 2003, that didn’t happen — through 169 days of regular, and then special (that is, emergency), legislative sittings.

At issue was not merely educational funding and other state spending, but a new tax regime (heavily promoted by Nevada’s gaming industry) that would have increased general business taxes in Nevada as a measure of tax relief for the neon lights of Clark Cty. What is Nevada’s second-largest industry? And did the price of its primary product just go up significantly? The answers, for the hesitant, are “mining,” and “yes.”

Fed up with democracy, Governor Guinn took the legislature to court. (That’s right: the et al. in the citation is made up of all the state senators and assemblymen.) The court decided that “this procedural requirement [for a two-thirds majority vote] must give way to the substantive and specific constitutional mandate to fund public education.”

It’s useful to note that the Nevada Supreme Court feels able to vault over the fences provided by the constitutional separation of powers at a time when nobody tells judges to stop, and when many interest groups look to the courts, rather than representative government, to get what they want. That freed the governor, and allies among the public service unions, to take the issue to court when they could not force it on the people’s representatives.

And it’s also useful to note that the budget impasse happened in the first place because of the need some people (and it must be said, some legislators) have felt to force representative government to do things it might otherwise choose freely not to do.

Nevada, for example, has a constitutional requirement for a balanced budget, a constitutional requirement to fund certain public functions (like education), and a constitutional requirement not to levy taxes without a two-thirds vote in the state legislature (or, alternatively, a simple majority in a reference to the state voters). Put enough of those requirements into one constitution, and you will sooner or later end up with a constitutional mandate to square the circle.

But while that makes a cogent argument for keeping basic laws and structures simple in government, it still does not excuse governments, and now judges, from observing constitutions as they exist, rather than as politicians and judges would like them to be. The state Supreme Court has evidently decided the laws that govern it are a menu, from which it can pick and choose its favorites.

The Governor is pleased. “The real victory here is that the schools will open. They will struggle a bit but they will open. What a catastrophe that would be not to have our schools open,” he said. Yes, everyone, think of the children; don’t, whatever you do, think of respecting the law.

However badly the children of Nevada need educating, Guinn and the justices need it more: constitutions are constitutions, and what is in them means something. Governors ought not to go crying to the court when they cannot get their way in the legislature. And judges ought not to be deciding questions of public policy they are expressly prevented from deciding: that, also is part of the constitution of the State of Nevada.