Governor v. Nevada State Legislature

• Decision Date: 17 September 2003
• Docket Number: No. 41679.,41679.
• Citation: 119 Nev. 460,76 P.3d 22
• Parties: Honorable Kenny GUINN, Governor of the State of Nevada, Petitioner, v. The LEGISLATURE OF the STATE OF NEVADA; Honorable Lorraine T. Hunt, President of the Senate; Honorable Richard D. Perkins, Speaker of the Assembly; Mark E. Amodei, Senator; Terry Care, Senator; Maggie Carlton, Senator; Barbara Cegavske, Senator; Bob Coffin, Senator; Warren B. Hardy, Senator; Bernice Mathews, Senator; Mike McGinness, Senator; Joseph M. Neal, Jr., Senator; Dennis Nolan, Senator; Ann O'Connell, Senator; William J. Raggio, Senator; Raymond D. Rawson, Senator; Dean A. Rhoads, Senator; Michael Schneider, Senator; Raymond C. Shaffer, Senator; Sandra Tiffany, Senator; Dina Titus, Senator; Randolph Townsend, Senator; Maurice Washington, Senator; Valerie Wiener, Senator; Bernie Anderson, Assemblyman; Walter Andonov, Assemblyman; Sharron E. Angle, Assemblywoman; Morse Arberry, Jr., Assemblyman; Kelvin D. Atkinson, Assemblyman; Bob Beers, Assemblyman; David Brown, Assemblyman; Barbara E. Buckley, Assemblywoman; John C. Carpenter, Assemblyman; Vonne S. Chowning, Assemblywoman; Chad Christensen, Assemblyman; Jerry D. Claborn, Assemblyman; Tom Collins, Assemblyman; Marcus Conklin, Assemblyman; Jason Geddes, Assemblyman; Dawn Gibbons, Assemblywoman; Chris Giunchigliani, Assemblywoman; Pete Goicoechea, Assemblyman; David Goldwater, Assemblyman; Tom Grady, Assemblyman; Josh Griffin, Assemblyman; Don Gustavson, Assemblyman; Joe Hardy, Assemblyman; Lynn C. Hettrick, Assemblyman; William C. Horne, Assemblyman; Ron Knecht, Assemblyman; Ellen M. Koivisto, Assemblywoman; Sheila Leslie, Assemblywoman; R. Garn Mabey, Jr., Assemblyman; Mark A. Manendo, Assemblyman; John A. Marvel, Assemblyman; Kathy McClain, Assemblywoman; Bob McCleary, Assemblyman; Harry Mortenson, Assemblyman; John Oceguera, Assemblyman; Genie Ohrenschall, Assemblywoman; David R. Parks, Assemblyman; Peggy Pierce, Assemblywoman; Rod Sherer, Assemblyman; Valerie Weber, Assemblywoman; and Wendell P. Williams, Assemblyman, Respondents. Lynn Hettrick; Garn Mabey; Bob Beers; Valerie Weber; Chad Christensen; Walter Andonov; David Brown; Sharron Angle; Don Gustavson; John Marvel; John Carpenter; Pete Goicoechea; Rod Sherer; Tom Grady; Ron Knecht; Barbara Cegavske; Mike McGinness; Ann O'Connell; Sandra Tiffany, and Maurice Washington, Members of the Legislature of Nevada, Counter-Petitioners, v. Honorable Kenny Guinn, Governor of the State of Nevada, and the Legislature of the State of Nevada, Counter-Respondents.
• Court: Nevada Supreme Court

76 P.3d 22

119 Nev. 460

Honorable Kenny GUINN, Governor of the State of Nevada, Petitioner, v. The LEGISLATURE OF the STATE OF NEVADA; Honorable Lorraine T. Hunt, President of the Senate; Honorable Richard D. Perkins, Speaker of the Assembly; Mark E. Amodei, Senator; Terry Care, Senator; Maggie Carlton, Senator; Barbara Cegavske, Senator; Bob Coffin, Senator; Warren B. Hardy, Senator; Bernice Mathews, Senator; Mike McGinness, Senator; Joseph M. Neal, Jr., Senator; Dennis Nolan, Senator; Ann O'Connell, Senator; William J. Raggio, Senator; Raymond D. Rawson, Senator; Dean A. Rhoads, Senator; Michael Schneider, Senator; Raymond C. Shaffer, Senator; Sandra Tiffany, Senator; Dina Titus, Senator; Randolph Townsend, Senator; Maurice Washington, Senator; Valerie Wiener, Senator; Bernie Anderson, Assemblyman; Walter Andonov, Assemblyman; Sharron E. Angle, Assemblywoman; Morse Arberry, Jr., Assemblyman; Kelvin D. Atkinson, Assemblyman; Bob Beers, Assemblyman; David Brown, Assemblyman; Barbara E. Buckley, Assemblywoman; John C. Carpenter, Assemblyman; Vonne S. Chowning, Assemblywoman; Chad Christensen, Assemblyman; Jerry D. Claborn, Assemblyman; Tom Collins, Assemblyman; Marcus Conklin, Assemblyman; Jason Geddes, Assemblyman; Dawn Gibbons, Assemblywoman; Chris Giunchigliani, Assemblywoman; Pete Goicoechea, Assemblyman; David Goldwater, Assemblyman; Tom Grady, Assemblyman; Josh Griffin, Assemblyman; Don Gustavson, Assemblyman; Joe Hardy, Assemblyman; Lynn C. Hettrick, Assemblyman; William C. Horne, Assemblyman; Ron Knecht, Assemblyman; Ellen M. Koivisto, Assemblywoman; Sheila Leslie, Assemblywoman; R. Garn Mabey, Jr., Assemblyman; Mark A. Manendo, Assemblyman; John A. Marvel, Assemblyman; Kathy McClain, Assemblywoman; Bob McCleary, Assemblyman; Harry Mortenson, Assemblyman; John Oceguera, Assemblyman; Genie Ohrenschall, Assemblywoman; David R. Parks, Assemblyman; Peggy Pierce, Assemblywoman; Rod Sherer, Assemblyman; Valerie Weber, Assemblywoman; and Wendell P. Williams, Assemblyman, Respondents.

Lynn Hettrick; Garn Mabey; Bob Beers; Valerie Weber; Chad Christensen; Walter Andonov; David Brown; Sharron Angle; Don Gustavson; John Marvel; John Carpenter; Pete Goicoechea; Rod Sherer; Tom Grady; Ron Knecht; Barbara Cegavske; Mike McGinness; Ann O'Connell; Sandra Tiffany, and Maurice Washington, Members of the Legislature of Nevada, Counter-Petitioners, v. Honorable Kenny Guinn, Governor of the State of Nevada, and the Legislature of the State of Nevada, Counter-Respondents.

No. 41679.

Supreme Court of Nevada.

September 17, 2003.

Brian Sandoval, Attorney General, and Jeff E. Parker, Solicitor General, Carson City, for Petitioner and Counter-Respondent.

Brenda J. Erdoes, Legislative Counsel, Carson City; Hale Lane Peek Dennison & Howard and N. Patrick Flanagan III, Reno, for Respondent Nevada State Legislature.

Allison, MacKenzie, Russell, Pavlakis, Wright & Fagan, Ltd., and Mark E. Amodei, Carson City, for Respondents Terry Care and Mark E. Amodei. Kathleen J. England, Las Vegas, for Respondent Morse Arberry, Jr.

Barbara E. Buckley, Carson City, in Proper Person.

Beckley Singleton, Chtd., and Daniel F. Polsenberg and Beau Sterling, Las Vegas, for Counter-Petitioners.

Jeffrey S. Blanck, General Counsel, Washoe County School District, Reno; Walther Key Maupin Oats Cox & LeGoy and Michael E. Malloy, Reno, for Amicus Curiae Washoe County School District.

Dyer, Lawrence, Penrose, Flaherty & Donaldson and Michael W. Dyer, Carson City, for Amici Curiae Nevada State Education Association, Clark County Education Association, Education Support Employees Association of Clark County, and Washoe Education Association.

Ellsworth Moody & Bennion, Chtd., and Keen L. Ellsworth, Las Vegas, for Amicus Curiae Nevada Congress of Parents and Teachers Association.

C.W. Hoffman Jr., General Counsel, Las Vegas, for Amicus Curiae Clark County School District.

Law Offices of Thomas D. Beatty and Thomas D. Beatty, Las Vegas, for Amici Curiae Clark County Association of School Administrators, Washoe County Education Administrators, and Nevada Association of School Administrators.

McCracken Stemerman Bowen & Holsberry and Richard G. McCracken, Las Vegas, for Amici Curiae Nevada State AFL-CIO and Nevada State Employees Association, AFSCME, Local 4041.

McDonald Carano Wilson LLP and John J. Laxague, Michael A.T. Pagni, Jeffrey A. Silvestri and Thomas R.C. Wilson II, Reno, for Amici Curiae Nevada Taxpayers Association, Associated Builders and Contractors-Sierra Nevada Chapter, AGC Nevada, Nevada Association of Mechanical Contractors, Sierra Chemical Company, Polymer Plastics Corporation, Barth Electronics, EDAWN/ Western Nevada Development Authority, Nevada Consumer Finance Corporation, Nevada Petroleum Marketers and Convenience Store Association, Cal-Neva Franchise Owners Association, 7-Eleven Franchise Owners Association of Southern Nevada, Nevada Resident Agents Association, Monte L. Miller and Joshua C. Miller, Nevada Bankers Association, Nevada Manufacturers Association, Nevada Motor Transport Association, Retail Association of Nevada, Tiberti Fence Company, Carson City Chamber of Commerce, Las Vegas Chamber of Commerce, Nevada Franchised Auto Dealers Association, Nevadans for Real Tax Fairness, Household International, Nevada Corporate Headquarters—Cort Christie, Robert List, Henderson Chamber of Commerce, Thomas Powell, Pic-Mount Imaging, Corp., Phoenix Holdings of Nevada, Inc., Nevada Association of Independent Businesses, Chain Drug Council of Nevada, and Grocery Industry Council of Nevada.

Thomas J. Ray, General Counsel, Las Vegas, for Amicus Curiae University and Community College System of Nevada.

James T. Richardson, Reno, for Amicus Curiae Nevada Faculty Alliance.

Layne T. Rushforth, Las Vegas, for Amicus Curiae Nevada Concerned Citizens.

Wilson & Barrows and Stewart R. Wilson, Elko; Gregory T. Broderick, Sacramento, California, for Amicus Curiae Pacific Legal Foundation.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

On July 10, 2003, we entered an opinion in this matter partially granting the Governor's petition for a writ of mandamus and denying the counter-petition filed by twenty Legislators. Our opinion directed this court's clerk to issue a writ directing the Legislature "to proceed expeditiously with the 20th Special Session under simple majority rule." The impetus for the writ petition, and our opinion, was the Nevada Legislature's continued failure to appropriate funds for the K-12 school system and to balance the state's budget by providing an adequate revenue plan to defray the state's estimated expenses for the biennium beginning July 1, 2003. On July 21, 2003, the counter-petitioners filed a rehearing petition, asking us to recall our writ of mandamus, reconsider our opinion, and grant one of the remedies suggested in the counter-petition. Later that same day, the Legislature fulfilled its constitutional duties to fund the public school system and balance the budget, and it adopted the revenue-raising legislation required to balance the budget by a two-thirds supermajority. According to the Legislature,

The Court's ruling in this case facilitated a shift from the tension that was caused by an externally-imposed requirement to achieve a 2/3 consensus, to a situation where the legislators were internally motivated to achieve a 2/3 consensus voluntarily. This shift in perception allowed reevaluation of fixed positions which led expeditiously to the passage of Senate Bill No. 8 ....

The counter-petitioners then supplemented their rehearing petition and moved this court to withdraw its opinion. At our direction, the Governor and Legislature responded to the rehearing petition. Assemblyman Arberry filed a supplemental response. Amici Curiae Education Associations¹ and the Pacific Legal Foundation also filed responses. Counter-petitioners filed a reply.

The Legislative stalemate that was thrust upon us was the result of a recent Nevada constitutional amendment requiring a two-thirds majority to pass legislation that creates, generates or increases any public revenue, including taxes. The Senate had passed legislation that would have completed the budget process, but the Assembly had deadlocked and could not garner the necessary two-thirds vote because of a difference of opinion among Assembly members over the role the two-thirds provision played in the budget process. The deadlock prevented the Assembly from funding the K-12 appropriations bill and balancing the budget.

We concluded, based on the calamitous circumstances facing our state, that the Legislature could proceed with the 20th Special Session under a simple majority requirement, given that the dispute over the two-thirds majority requirement's applicability to the budget process had prevented the Legislature during one regular and two special sessions from fulfilling its constitutional duties to appropriate funds and to maintain the public school system while balancing the budget. Accordingly, we granted the petition as to the Legislature as a body, but denied the petition as to the individual legislators and the Lieutenant Governor. We also denied the counter-petition, which requested us to determine that the two-thirds supermajority provision applied not only to increases in revenue, but to the budget itself.

BACKGROUND

The Nevada Constitution has, since it was enacted, required that bills and joint resolutions be passed by a simple majority of each house. Article 4, Section 18(1) originally provided that "a majority of all the members elected to each house is necessary to pass every bill or joint resolution."² In 1993, a member of the Legislature sponsored a resolution that proposed amending the Constitution to require a two-thirds majority of each house to increase certain existing taxes or impose new taxes.

At a hearing on the proposed resolution, legislators asked one of the main proponents if the other states with similar provisions...