The Volokh Conspiracy - Nevada Supreme Court Quietly Reverses Its Decision That Authorizes Suspension of Constitutional Procedural Requirements:

I blogged about that earlier July 2003 decision here (the earlier decision itself is here; thanks to commenter Joe Zwers for the pointer):

Nevada appears to be in the middle of a fiscal crisis: Its constitution more or less requires a balanced budget (art. 9, sec. 2(1)). There's a shortfall. The Legislature hasn't funded the budget. Various state functions, including the educational system, are right now (as of July 1) unfunded. And the Nevada Constitution (art. 4, sec. 18(2), enacted by voter initiative in 1996), requires a two-thirds vote to increase taxes, which has contributed to the budget deadlock. (I have no independent knowledge of this; I'm paraphrasing the court's statement of the facts.)

The Nevada Supreme Court has (1) ordered the Legislature to enact a budget, and (2) suspended the operation of the two-thirds majority requirement. That's right, the two-thirds majority requirement is right there in the Nevada Constitution:

2. Except as otherwise provided in subsection 3, an affirmative vote of not fewer than two-thirds of the members elected to each house is necessary 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.

3. A majority of all of the members elected to each house may refer any measure which creates, generates, or increases any revenue in any form to the people of the State at the next general election, and shall become effective and enforced only if it has been approved by a majority of the votes cast on the measure a such election.

But the Nevada Supreme Court has held that the Legislature must ignore this requirement.

The Nevada Constitution does mandate (art. 11, secs. 1, 2, and 6) that the legislature create and fund public schools, though it's silent on the level of funding that the legislature must provide. Most state constitutions do impose such an affirmative obligation on the state government, and many have been read as providing affirmative judicially enforceable rights; I do not object to that conclusion here. But the Nevada Supreme Court has held that the constitutional provision requires the state legislature to fund the schools through means that are themselves unconstitutional.

The Court recognizes this, and provides the following reasoning:

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.

But this makes very little sense. First, the court just assumes that procedural requirements are somehow less important than substantive rights. How so? Some of the most important rules in our constitutions — majority vote for most laws, the unanimity requirement on criminal juries (in many jurisdictions) or at least the supermajority requirement (in all jurisdictions), the procedural constraints on which chamber may initiate tax legislation, which chamber may approve appointments, and so on — are procedural. These are tremendously important; courts may not waive them just in order to serve the constitution's substantive commands. Rather, American constitutions require that substantive entitlements be provided while respecting the prpcedural rules. [For more, see here.]

Today, in a case in which the proponents of an initiative wanted the court to relax a different procedural state constitutional requirement for circulation of initiatives, the court said no, holding that the requirement had to be enforced strictly. And in the course of this, the court said:

We next address the parties' arguments about whether a "strict adherence" or "substantial compliance" standard should apply to evaluating whether the committee satisfied Article 19, Section 2(4)'s mandate. The opponents argue that strict adherence should apply here, where the constitutional requirement at issue is designed to protect the initiative process. The committee, on the other hand, advocates for a substantial compliance standard to apply in cases that do not involve constitutional "authentication" requirements. We conclude, as set forth below, that Article 19, Section 2 must be adhered to strictly.

And since the committee has made a distinction between different types of constitutional procedural requirements, urging this court to adopt a looser standard of compliance for some constitutional requirements, while maintaining a strict standard for constitutional authentication requirements, we take this opportunity to clarify Governor v. Nevada State Legislature, wherein this court, in construing the Nevada Constitution, distinguished between "procedural" and "substantive" requirements, concluding that procedure must yield to substance if the requirements conflict. We expressly overrule that portion of the opinion. The Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision.

Well, better late than never, I suppose, though I hope the "should be read as a whole, so as to give effect to and harmonize each provision" doesn't give the court wiggle room to repeat the Governor v. Legislature (also known as Guinn v. Legislature) error in the future.

	[Eugene Volokh, September 11, 2006 at 8:06pm] Trackbacks Nevada Supreme Court Quietly Reverses Its Decision That Authorizes Suspension of Constitutional Procedural Requirements: I blogged about that earlier July 2003 decision here (the earlier decision itself is here; thanks to commenter Joe Zwers for the pointer): Nevada appears to be in the middle of a fiscal crisis: Its constitution more or less requires a balanced budget (art. 9, sec. 2(1)). There's a shortfall. The Legislature hasn't funded the budget. Various state functions, including the educational system, are right now (as of July 1) unfunded. And the Nevada Constitution (art. 4, sec. 18(2), enacted by voter initiative in 1996), requires a two-thirds vote to increase taxes, which has contributed to the budget deadlock. (I have no independent knowledge of this; I'm paraphrasing the court's statement of the facts.) The Nevada Supreme Court has (1) ordered the Legislature to enact a budget, and (2) suspended the operation of the two-thirds majority requirement. That's right, the two-thirds majority requirement is right there in the Nevada Constitution: 2. Except as otherwise provided in subsection 3, an affirmative vote of not fewer than two-thirds of the members elected to each house is necessary 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. 3. A majority of all of the members elected to each house may refer any measure which creates, generates, or increases any revenue in any form to the people of the State at the next general election, and shall become effective and enforced only if it has been approved by a majority of the votes cast on the measure a such election. But the Nevada Supreme Court has held that the Legislature must ignore this requirement. The Nevada Constitution does mandate (art. 11, secs. 1, 2, and 6) that the legislature create and fund public schools, though it's silent on the level of funding that the legislature must provide. Most state constitutions do impose such an affirmative obligation on the state government, and many have been read as providing affirmative judicially enforceable rights; I do not object to that conclusion here. But the Nevada Supreme Court has held that the constitutional provision requires the state legislature to fund the schools through means that are themselves unconstitutional. The Court recognizes this, and provides the following reasoning: 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. But this makes very little sense. First, the court just assumes that procedural requirements are somehow less important than substantive rights. How so? Some of the most important rules in our constitutions — majority vote for most laws, the unanimity requirement on criminal juries (in many jurisdictions) or at least the supermajority requirement (in all jurisdictions), the procedural constraints on which chamber may initiate tax legislation, which chamber may approve appointments, and so on — are procedural. These are tremendously important; courts may not waive them just in order to serve the constitution's substantive commands. Rather, American constitutions require that substantive entitlements be provided while respecting the prpcedural rules. [For more, see here.] Today, in a case in which the proponents of an initiative wanted the court to relax a different procedural state constitutional requirement for circulation of initiatives, the court said no, holding that the requirement had to be enforced strictly. And in the course of this, the court said: We next address the parties' arguments about whether a "strict adherence" or "substantial compliance" standard should apply to evaluating whether the committee satisfied Article 19, Section 2(4)'s mandate. The opponents argue that strict adherence should apply here, where the constitutional requirement at issue is designed to protect the initiative process. The committee, on the other hand, advocates for a substantial compliance standard to apply in cases that do not involve constitutional "authentication" requirements. We conclude, as set forth below, that Article 19, Section 2 must be adhered to strictly. And since the committee has made a distinction between different types of constitutional procedural requirements, urging this court to adopt a looser standard of compliance for some constitutional requirements, while maintaining a strict standard for constitutional authentication requirements, we take this opportunity to clarify Governor v. Nevada State Legislature, wherein this court, in construing the Nevada Constitution, distinguished between "procedural" and "substantive" requirements, concluding that procedure must yield to substance if the requirements conflict. We expressly overrule that portion of the opinion. The Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision. Well, better late than never, I suppose, though I hope the "should be read as a whole, so as to give effect to and harmonize each provision" doesn't give the court wiggle room to repeat the Governor v. Legislature (also known as Guinn v. Legislature) error in the future.