The U.S. Supreme Court shouldn't weigh in on a Nevada high court ruling that temporarily invalidated a two-thirds vote requirement by state lawmakers for any tax increases, lawyers for the Legislature say.
Taking up the controversial state Supreme Court ruling issued during last year's tax and budget battle would only result in "an advisory opinion on an abstract political question in a case with no actual, live controversy," the legislative lawyers said.
The 31-page brief filed Friday was in response to a request for the high court's intervention in the 6-1 state Supreme Court ruling on a voter-approved requirement for a two-thirds vote in each house of the Legislature to approve a tax increase.
That request was filed Jan. 20 by John Eastman, director of the Claremont Center at the Chapman University School of Law, on behalf of 24 Republican state lawmakers who want to nullify the Nevada court's July 10 ruling.
Eastman says 15 states have supermajority rules for tax increases and the Nevada Supreme Court decision is a challenge to all of them.
State legislators approved an $833 million tax increase last year - but ultimately managed to get a two-thirds vote on the plan in both the Assembly and the Senate.
If the U.S. Supreme Court doesn't grant Eastman's petition, the case won't be over. The case also is before the 9th U.S. Circuit Court of Appeals, which is scheduled to hear oral arguments in April.
The brief in opposition was filed by Legislative Counsel Brenda Erdoes and two other legal organizations, the Robert S. Peck Center for Constitutional Litigation in Washington, D.C., and Erwin Chemerinsky of the Law School of the University of Southern California.
The court's nullification of the two-thirds requirement on taxes surprised many because it wasn't sought as a specific remedy by Republican Kenny Guinn, who favored higher taxes. Instead, it was raised in a "friend of the court" brief filed by the state teachers union in support of Guinn.
In his petition, Eastman raises several issues, among them that the state Supreme Court ruling violates the U.S. Constitution's guarantee of a Republican form of government in the states because it overturned votes of the people.
Nevada voters in 1994 and 1996 approved the constitutional requirement for a two-thirds supermajority on taxes. But the legislative attorneys say that the Republican lawmakers improperly want the U.S. Supreme Court to reverse a valid interpretation of the Nevada Constitution by the state Supreme Court.
Assembly Minority Leader Lynn Hettrick, R-Gardnerville, said the case is anything but moot because the state Supreme Court opinion remains on the books despite wording that suggests it only applied to the 2003 special session that produced the final tax plan.
If another deadlock emerges in a future legislative session, the opinion would be used to again try to undermine the vote of the people to require a supermajority for taxes, Hettrick said.