January 11, 2005—John Eastman, director of the Claremont Institute's Center for Constitutional Jurisprudence, joined by former Attorney General Edwin Meese and co-counsel Erik Jaffe and Jeff Dickerson, filed a reply brief in support of their petition for writ of certiorari, asking the Supreme Court to review the unconstitutional actions taken by the Nevada Legislature in July 2003 passing tax bills without the 2/3 vote required by the Nevada Constitution.. Download the reply brief here and the Nevada Legislature's opposition here.
October 20, 2004—John Eastman, director of the Claremont Institute's Center for Constitutional Jurisprudence, joined by former Attorney General Edwin Meese and co-counsel Erik Jaffe and Jeff Dickerson, filed a new petition for writ of certiorari on Wednesday before the Supreme Court of the United States. Download the petition here.
May 12, 2004— The U.S. Court of Appeals for the Ninth Circuit rejected the appeal brought by John Eastman, Director of the Institute's Center for Constitutional Jurisprudence, on behalf of Nevada legislators and taxpayers challenging last summer's action by the Nevada Assembly deeming as "passed" a tax increase bill without the two-thirds vote required by the Nevada Constitution.
The Court held that the claims for declaratory and injunctive relief were made moot by a subsequent action by the Assembly passing another tax bill with the required two-thirds vote, and rejected the plaintiffs contention that, as most Nevadans expect, the Legislature is likely to repeat the illegal tax votes during the next legislative session. The Court also rejected plaintiffs claim for damages for the unlawful vote dilution, holding that vote dilution is merely an abstract harm when the diluted votes did not actually result in a statute.
Apparently, the Court rejected Eastman's contention that vote dilution is a constitutional harm in and of itself, whether or not the vote would have effected the outcome. At oral argument on April 15, Eastman had offered the Court the following hypothetical: suppose a group of voters are barred from the voting booths on election day, but the candidate they supported would not have won even with their votes. Would they not be "harmed" in being deprived of their right to vote, quite apart from whether their votes would have effected the outcome of the election? "Apparently not," Eastman stated after receiving the Court's ruling.
For a full discussion of the harm that the Nevada Supreme Court's decision actually caused to the legislative process, see Assemblyman Ron Knecht's commentary here. To hear the audio of John Eastman's argument on behalf of Nevada taxpayers, click here.
U.S. Supreme Court Denies Legislators' Petition for Review (March 22, 2004)
The U.S. Supreme Court denied the petition for certiorari that John Eastman had filed on behalf of Nevada legislators in January requesting the Court to review the Nevada Supreme Court's decision directly. Eastman--himself a former Supreme Court clerk--noted, though, that the Supreme Court's review is entirely discretionary, and the denial of a petition for a writ of certiorari does not in any way indicate the Court's agreement with the lower court decision, particularly in a case of first impression such as this, at least parts of which arguably became moot when the Legislature was ultimately able to achieve a 2/3 vote for raising taxes. "Often the Supreme Court will wait for other courts to weigh in on an important issue before finally deciding to take a case itself," Eastman said. The important thing here is that the Nevada Supreme Court is now on notice that federal rights were implicated by its decision last July ordering the Nevada legislature to ignore a key structural provision of the state's constitution. "If they try this stunt again in 2005," Eastman said, "we'll be ready to represent the people of Nevada again in their efforts to uphold their right to determine the restrictions they want to place on their own government."
Read the Latest Coverage:
- Federal Appeals Court Rejects Nevada Two-Thirds Majority Tax Case, by Brendon Riley (AP, Las Vegas Sun)
- Guinn Court Decision is Not Moot and Should Be Overturned, by Ron Knecht (Nevada Appeal)
- GOP Lawmakers Take Tax Fight To U.S. Supreme Court, by Cy Ryan (Las Vegas Sun)
- California Lawmakers Join in Nevada Supermajority Tax Issue, AP (Reno Gazette-Journal)
- Supreme Court to Hear Nevada Tax-Bill Woes, by Martha Bellisle (Reno Gazette-Journal)
- U.S. High Court Asked to Consider Nevada Tax Decision, by Ed Koch (Las Vegas Sun)
- Commentary: Take the Case, by Steve Sebelius (Las Vegas Review-Journal)
In the wake of the Nevada Supreme Court's extraordinary ruling on July 10, 2003, ordering the Nevada Legislature to raise taxes "by simple majority vote" in violation of the two-thirds vote requirement of the state's constitution, John Eastman, Director of the Claremont Institute Center for Constitutional Jurisprudence and Professor of Law at Chapman University School of Law, together with local counsel Jeffrey Dickerson of Reno, Nevada, filed a complaint and request for emergency Temporary Restraining Order on Monday, July 14, in the United States District Court for the District of Nevada. Eastman and Dickerson sued on behalf of 24 members of the Nevada legislature and numerous taxpayers, voters, and business associations.
The parties challenged as unconstitutional action by the State Assembly to deem as "passed" a bill increasing taxes in the state without the two-thirds vote required by the Nevada Constitution. Nevada voters adopted the two-thirds requirement by initiative in 1996 by over 70% of the vote. The Nevada Supreme Court's decision was in response to a suit by the Governor of Nevada, Kenny Guinn, against the Nevada Legislature, essentially asking the Nevada Supreme Court to order the Legislature to give him the tax increase he had requested.
Eastman's complaint alleged violations of federal civil, political, and constitutional rights, including the right of Nevada's legislators not to have their votes diluted, and the right of the citizens of Nevada not to have their vote to amend the Nevada Constitution nullified. The complaint also alleged that the actions violated the Republican Guaranty Clause of the federal Constitution.
The federal district court, sitting en banc, granted Eastman's request for a TRO that same afternoon, and scheduled an emergency hearing two days later, which was held simultaneously in the federal district courthouses in Reno and Las Vegas, connected by closed-circuit television.
On Friday, July 18, the district court ruled that it was without jurisdiction to consider the claims and lifted the TRO. After an emergency application for a preliminary injunction was rejected by the Ninth Circuit Court of Appeals, the legislature was free to proceed "by simple majority vote." The Nevada Assembly did just that, adopting late in the day on Saturday SB5, a tax increase without the two-thirds vote required by the Nevada Constitution. But the Senate refused to consider the bill, apparently recognizing that even the Nevada Supreme Court could not authorize it to ignore the constitution. On July 21, the Senate and Assembly were finally able to achieve the requisite two-thirds vote for SB8, an $836 million tax increase, and the extraordinary legislative session came to an end.
Eastman is available for media interviews. Call (909) 621-6825 to schedule or for more information.
Nevada Supreme Court Filings and Rulings
- Complete Index of Filings at the Nevada Supreme Court
- Governor Guinn's Petition for Writ of Mandamus (July 1, 2003)
- Counter Petition of Select Legislators (July 7, 2003)
- Nevada Supreme Court's Order Granting the Writ (July 10, 2003)
- Petition for Rehearing to Nevada Supreme Court (July 21, 2003) (pdf)
- Amicus Brief of Pacific Legal Foundation in Support of Petition for Rehearing (July 21, 2003) (pdf)
- Motion to Vacate (July 22, 2003)
- Supplemental Points and Authorities in Support of Petition for Rehearing (July 23, 2003)
- Teachers' Union Brief in Opposition to Petition for Rehearing (July 24, 2003)
- Governor's Brief in Opposition to Petition for Rehearing (July 25, 2003)
- Legislature's Brief in Opposition to Petition for Rehearing (July 28, 2003)
- Select Legislator's Reply Brief in Support of Petition for Rehearing (July 30, 2003)
- Nevada Supreme Court Decision Denying Petition for Rehearing and Motion to Vacate (Sept. 17, 2003)
- Nevada Supreme Court Order Calling for Answer to Petition for Rehearing (July 21, 2003) (pdf)
Federal District Court Filings and Rulings
- Complaint for Violation of Civil and Constitutional Rights (pdf)
- Plaintiffs' Request for a Temporary Restraining Order (pdf)
- Plaintiffs' Memo of Points and Authorities (pdf)
- District Court Ruling to Grant Temporary Restraining Order (pdf)
- Amicus Brief from Pacific Legal Foundation/American Legislative Exchange Council Supporting Plaintiffs (pdf)
- Nevada Governor Kenny Guinn's Opposition Brief (pdf)
- Nevada State Legislature's Opposition Brief (pdf)
- The AFL-CIO's Opposition Brief (pdf)
- Plaintiffs' Reply Brief in Support of Plaintiffs' Motion for Preliminary Injunction (July 16, 2003) (pdf)
- Federal District Court Order of Dismissal (July 18, 2003) (pdf)
Federal Ninth Circuit Court of Appeals Filings
- Plaintiffs' Opening Brief (Oct. 27, 2003)
- Opposition Brief of Defendants Gov. Kenny Guinn, Sec. of State Dean Heller, and Dept. of Taxation Executive Director Charles Chinnock (Dec. 10, 2003)
- Opposition Brief of Nevada Legislature (Dec. 10, 2003)
- Opposition Amicus Brief of the Nevada State Education Association (Dec. 17, 2003)
- Plaintiffs' Reply Brief (Jan. 12, 2004)
- Ninth Circuit Court's Ruling (May 12, 2004)
United States Supreme Court Filings in Angle v. Guinn
- Petition for Writ of Certiorari (Jan. 20, 2004)
- Appendix to the Petition for Writ of Certiorari (Jan. 20, 2004)
- The Nevada Legislature's Response Brief (Feb. 20)
- Pacific Legal Foundation's Amicus Brief (Feb. 20)
- National Taxpayers Union's Amicus Brief (Feb. 20)
- Initiative and Referendum Institute's Amicus Brief (Feb. 20)
- Petitioner's Reply in Support of Petition for Writ of Certiorari (Mar. 2)
- New Petition for Writ of Certiorari (Oct. 20)
United States Supreme Court Filings in Angle v. Nevada Legislature
- Governor Guinn's Petition for Writ of Mandamus (July 1, 2003)