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
Guinn v. Legislature of Nevada
Before the Court En Banc.
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. CLA BORN, 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.
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. CLA BORN, 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
July 10, 2003
71 P.3d 1269
Brian Sandoval, Attorney General, and Jeff E. Parker, Solicitor General, Carson City, for Petitioner and Counter-Respondent.
Brenda J. Erdoes, Legislative Counsel, Carson City, for Respondents.
Allison, MacKenzie, Russell, Pavlakis, Wright & Fagan, Ltd., and Mark E. Amodei, Carson City, for Respondents Care and Amodei.
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/Westem 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
By the Court,
Agosti, C. J.:
The Governor of Nevada has petitioned this court for a writ of mandamus declaring the Legislature to be in violation of the Nevada Constitution, and compelling the Legislature to fulfill its constitutional duty to approve a balanced budget — including an annual tax to defray the state's estimated expenses for the biennium beginning July 1, 2003, and appropriations to fund public education during that fiscal period — by a time certain. We agree that our intervention is appropriate in this extraordinary circumstance.
The Legislature failed to fund education in the 72nd Regular Session and in two special sessions and is evidently in a deadlock over the means of raising the necessary revenues. As a result, .Nevada's public educational institutions are in crisis because they are unable to proceed with the preparations and functions necessary for the 2003-2004 school year.
It is apparent that the Legislature has failed to fulfill its constitutional mandate because of the conflict among several provisions of the Nevada Constitution. Therefore, we, in our judicial role as interpreters of the Nevada Constitution, must reconcile the provisions which cause the present crisis.
Because we conclude that the individual legislators and the Lieutenant Governor have not violated their constitutional duties, we deny the petition as to them as individuals. We grant the petition as to the Legislature as a body. We order the Legislature to fulfill its obligations under the Constitution of Nevada by raising sufficient revenues to fund education while maintaining a balanced budget. Due to the impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority, we conclude that this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education. Therefore, we grant the petition in part and order the clerk of this court to issue a writ of mandamus directing the Legislature of the State of Nevada to proceed expeditiously with the 20th Special Session under simple majority rule.
DISCUSSION
The Governor filed this writ petition after the Legislature failed to approve a balanced budget before the start of fiscal year 2004, which started on July 1, 2003. The Governor is responsible for the faithful execution of the state's laws and is also responsible for proposing a state budget and submitting it to the Legislature. Pursuant to Article 9, Section 2 of our Constitution, the Legislature is responsible for approving a balanced budget. Also, Article 11, Section 6 of our Constitution compels the Legislature to support and maintain the public school system. The Legislature must appropriate the money needed for all state government expenditures and provide for an annual tax to defray the state's estimated expenses for the two fiscal years following its regular biennial session. Fiscal year 2004 began on July l, yet the Legislature has thus far failed in its obligation to support and maintain the public school system. No money has been appropriated to fund this constitutionally mandated obligation. Our Constitution's Article 4, Section 19 provides that the State Treasurer cannot release general funds from the state treasury without specific legislative appropriation.
The Governor began the 2003 legislative session with a request for $980 million in new revenues to balance his proposed budget for the 2003-2005 biennium. The Legislature did not fund education in its 72nd Regular Session, which ended on June 3, 2003, but, after making substantial cuts in the Governor's budget, appropriated $3,264,269,361 for various government functions. The Governor signed these appropriations into law. Existing revenues are expected to meet these appropriations.
Since the conclusion of the Legislature's general session, two special sessions have been convened. On June 3, 2003, the Governor convened the Legislature in the 19th Special Session to appropriate funds for the K-12 school system and to provide an adequate tax plan to provide for funding. The Legislature failed to reach an agreement on a tax plan. The Governor adjourned the 19th Special Session at the request of the Senate Majority Leader and the Speaker of the Assembly on June 12, 2003. That same day, the Governor convened the Legislature for a second special session to begin on June 25, 2003. The Legislature convened, but had not passed a bill to raise the required revenues for the educational system by the start of the new fiscal year, July 1, 2003. The Senate and Assembly recessed by mutual consent, because of their inability to pass a revenue measure by a two-thirds majority.
Since its enactment in 1864, the Nevada Constitution has required a simple majority of each house to pass a bill or joint resolution. Article 4, Section 18(1) provides that "a majority of all the members elected to each house is necessary to pass every bill or joint resolution." In 1993, the Legislature rejected a resolution that proposed to amend the Constitution to create an exception to the simple majority rule and require a two-thirds majority of each house to increase existing taxes or impose new taxes. Ultimately, by initiative, the citizens accepted an identical proposal as a constitutional amendment. The constitutionally required second vote on the initiative occurred in 1996, at a time when the state enjoyed a budget surplus and public sentiment strongly favored restricted tax increases. Article 4, Section 18(2) of our Constitution now requires a two-thirds vote of each house "to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates."
In 1997, 1999 and 2001, the Legislature was able to work within these new constraints without major difficulties because the state operated under a budget surplus and no major tax increases required a vote in the Legislature. By 2003, however, the state's economic picture had changed drastically. The Legislature, faced with a rapidly increasing population, a substantial budget deficit and record-high needs, was unable to reach a two-thirds majority and left its constitutional obligations unfulfilled.
The Legislature's failure to fulfill its constitutional duties by the beginning of the new fiscal year has precipitated an imminent fiscal emergency. Nevada now faces an unprecedented budget crisis. Schools have not been funded for the upcoming school year. Teachers have not been hired. Educational programs have been eliminated. Planning for the academic year is not possible, and the state's bond rating may be jeopardized. This court has been petitioned to resolve the crisis. In light of the above circumstances, it appears there is no plain, speedy and adequate remedy in the ordinary course of law, and this court's intervention is warranted.
At the heart of this case is the two-thirds supermajority requirement for revenue-raising legislation. The Legislature is unable to fulfill its constitutional duties to fund the public schools and to adopt a balanced budget because it has not met the two-thirds vote requirement. The Legislature's failure to provide funds for public education, to pass the concomitant revenue generating package and to balance the state's budget after having had the opportunities of one general session and two special sessions to do so, leads us to the inevitable conclusion that it is futile to order the Legislature to debate further within the parameters of Article 4, Section 18(2). As constitutional construction is purely a province of the judici ary, we undertake to resolve the tension between the Legislature's constitutional obligation to fund public education and the constitutional provisions requiring a simple majority to enact appropriations bills but a two-thirds majority to generate or increase public revenue to fund those appropriations.
Clearly, this court has no authority to levy taxes or make appropriations. Only our Legislature has been given the constitutional mandate to make appropriations, levy taxes, and to balance the state's budget. However, when constitutional provisions are incompatible with one another or are unworkable, or when the enforcement of one prevents the fulfillment of another, this court must exercise its judicial function of interpreting the Constitution and attempt to resolve the problem.
When construing constitutional provisions, we apply the same rules of construction used to interpret statutes. Our task is to ascertain the intent of those who enacted the provisions at issue, and "to adopt an interpretation that best captures their objective. We must give words their plain meaning unless doing so would violate the spirit of the provision." Whenever possible, we construe provisions so that they are in harmony with each other. Specific provisions take precedence over general provisions. Finally, constitutional provisions should be interpreted so as to avoid absurd consequences and not produce public mischief.
Nevada's Constitution clearly expresses the vital role that education plays in our state in Article 11. Of particular importance are Sections 1,2, and 6. Section 1 mandates:
The legislature shall encourage by all suitable means the promotion of intellectual, literary, scientific, mining, mechanical, agricultural, and moral improvements, and also provide for a superintendent of public instruction and by law prescribe the manner of appointment, term of office and the duties thereof.
Section 2 mandates:
The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year . . . and the legislature may pass such laws as will tend to secure a general attendance of the children in each school district upon said public schools.
And Section 6 requires the Legislature to provide for the support and maintenance of the public schools.
Our Constitution's framers strongly believed that each child should have the opportunity to receive a basic education. Their views resulted in a Constitution that places great importance on education. Its provisions demonstrate that education is a basic constitutional right in Nevada.
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. We agree with the Wyoming Supreme Court that "[cjonstitutional provisions imposing an affirmative mandatory duty upon the legislature are judicially enforceable in protecting individual rights, such as educational rights." It is paramount that we give Section 18(2) a construction that will preserve the basic right of education. Other states with constitutional provisions similar to ours have also given significant import to the educational clauses of their constitutions.
Our Legislature has failed to accomplish its constitutionally mandated tasks of funding Nevada's public education system and balancing the budget. In order to allow the Legislature to fulfill its constitutional mandate in this regard, the general language of Section 18(2) must give way to the simple majority requirement of Article 4, Section 18(1) in order that the specific provisions concerning education are not defeated.
Based upon the Legislature's failure over the last several weeks to fund the constitutionally mandated arena of education, we observe that its adherence to the Constitution's two-thirds majority provision defeats the Constitution's public education funding requirements. We conclude that an irreconcilable conflict exists with respect to the relevant constitutional provisions. Because the Governor has seen fit to petition this court in mandamus, and because evidently further legislative discussions are futile, it becomes the responsibility of this court to order the Legislature to fund public education and to balance the budget. It is a waste of public resources to simply tell the Legislature to forge on and deliberate and negotiate further, since that body has failed to perform its constitutionally required function. As a result, this court is faced with the onerous task of weighing the various constitutional provisions and, in effect, prioritizing them.
The two-thirds majority requirement is a procedural requirement. It is a process requirement by which legislative action is accomplished and decisions that weigh the public interests are accounted for. In the area of taxation this means that the Legislature must agree by a two-thirds majority as to which mechanisms will be employed to generate revenue. Without a two-thirds majority, revenue measures may not be enacted. This general constitutional provision does not purport to say what the substance of the revenue measures ought to be, only that whatever they be, they are acceptable to two-thirds of the elected members of each house of the Legislature.
In contrast, the Constitution requires specifically, as a matter of substantive constitutional law, that public education be funded. The framers have elevated the public education of the youth of Nevada to a position of constitutional primacy. Public education is a right that the people, and the youth, of Nevada are entitled, through the Constitution, to access. If the procedural two-thirds revenue vote requirement in effect denies the public its expectation of access to public education, then the two-thirds requirement must yield to the specific substantive educational right.
The Legislature must resume its work of funding education and selecting appropriate methods of revenue generation to balance the state's budget. Therefore, we grant the petition as to the Legislature of the State of Nevada and direct this court's clerk to issue a writ of mandamus directing the Legislature to proceed expeditiously with the 20th Special Session under simple majority rule. The relief prayed for in the petition as to the Lieutenant Governor and the individual legislators and in the counter-petition is denied.
Shearing, Rose, Leavitt, Becker and Gibbons, JJ., concur.
Nev. Const. art. 5, § 7.
Id. art. 4, § 2(3).
Nev. Const. art. 11, § 6 provides that "[i]n addition to other means provided for the support and maintenance of [the state] university and common schools, the legislature shall provide for their support and maintenance by direct legislative appropriation from the general fund."
Nev. Const. art. 9, § 2(1) provides that "[t]he legislature shall provide by law for an annual tax sufficient to defray the estimated expenses of the state for each fiscal year."
Nev. Const. art. 9, § 1.
Nev. Const. art. 4, § 2(2) limits the regular session to 120 days.
All but three sections of this law took effect on July 1, 2003. Two provisions took effect on June 3, 2003, and one other will take effect on July 1, 2004. 2003 Nev. Stat., ch. 328.
Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 837 (Andrew J. Marsh off. rep., 1866).
Some of the pleadings argue that no emergency exists because the Governor and Legislature have methods of providing for education. We have no authority, under the separation of powers doctrine, to compel either the Governor or the Legislature to employ such methods to resolve any impasse.
Nev. Const. art. 6, § 4; NRS 34.160 (providing that a writ of mandamus may issue to compel the performance of an act that the law especially enjoins as a duty resulting from an office, trust or station); NRS 34.170 (stating that a writ of mandamus may issue when there is no plain, speedy and adequate remedy in the ordinary course of law).
Marbury v. Madison, 5 U.S. 137, 178 (1803); State of Nevada v. Rosenthal, 93 Nev. 36, 41, 559 P.2d 830, 834 (1977).
We note that Article 4, Section 18(3) allows a simple majority of each legislative house's members to refer to the people any measure that creates, generates, or increases revenue. Under this section, however, the referral may only be made at the next general election, which will not occur until November 2004. NRS 293.12755. This sixteen-month delay renders any remedy under Section 18(3) inadequate, given the immediacy of the fiscal and educational crises facing our state.
Nev. Const. art. 3, § 1 (providing for separation of powers); id. art. 4, § 1 (vesting state's legislative authority in Senate and Assembly); id. art. 4, § 18; id. art. 9, § 2.
Nevada Mining Ass'n v. Erdoes, 117 Nev. 531, 538, 26 P.3d 753, 757 (2001).
Id.
See Bowyer v. Taak, 107 Nev. 625, 627, 817 P.2d 1176, 1177 (1991); see also People v. Anderson, 493 P.2d 880, 886 (Cal. 1972).
SIIS v. Surman, 103 Nev. 366, 368, 741 P.2d 1357, 1359 (1987).
State v. Brodigan, 44 Nev. 306, 311, 194 P. 845, 846-47 (1921).
See Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 567-72 (Andrew J. Marsh off. rep., 1866).
Campbell County School Dist. v. State, 907 P.2d 1238, 1264 (Wyo. 1995); see also Washakie Co. Sch. Dist. No. One v. Herschler, 606 P.2d 310 (Wyo. 1980).
See Montana Power Co. v. Public Service Com'n, 26 P.3d 91, 96 (Mont. 2001) (stating that constructions which preserve constitutional rights are paramount).
See, e.g., Brigham v. State, 692 A.2d 384, 391-95 (Vt. 1997); Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 492-95 (Ark. 2002), cert. denied, 538 U.S. 1035 (2003).