More Supreme Court Howlers

On July 10, 2003, before the eyes of history and a suddenly attentive Nevada public, the state Supreme Court stepped into the spotlight, filled with confidence.

Whereupon the court immediately performed a full-blown public pratfall.

The court had been asked to respond to a routinely political appeal from a routinely tendentious governor.

But before one and all, the court revealed that none of its members saw anything remotely peculiar about casually liquidating key provisions of the Nevada Constitution.

It was an astonishing demonstration of judicial unconsciousness.

First, the justices were clearly insensible to what has been America’s most fundamental rule of constitutional interpretation ever since Marbury v. Madison—that the standard for assessing the constitutionality of a measure must always be the entire constitution itself, rather than merely some judges’ favorite parts.

Second, the Nevada justices were also oblivious to the massive contempt they were demonstrating for the overwhelming majority of Silver State voters—the 70-plus percent who had twice voted to place the Gibbons Amendment in the Nevada Constitution.

Just how far beyond the pale the court had strayed was soon shown by state legislative leaders. Noting the outrage boiling up from voters across the state, top Senate and Assembly pols paled, did a quick U-turn, and hot-footed it out of the Supremes’ constitutional fantasyland.

Shunning the bogus “a-simple-majority-is-enough” rule that the justices had concocted for them, the legislators began pretending that their embarrassing colleagues next door at the high court had never spoken. Soon, surprise of surprises, lawmakers passed the state’s 2003-2005 biennial budget fully in accord with the provisions of the Gibbons Amendment, then vacated Carson City.

Some exceptionally important questions remain, however. Why were Nevada’s highest justices walking around in such a virtual coma? How could politically astute attorneys of purportedly superior intelligence descend so far into arrogant stupor?

The short answer is that Nevada’s Supreme Court has gotten away with such fatuous behavior for many years. Unfortunately, this is the actual depressing nature of the state’s justice system. What’s new is simply that, now, more people are paying attention.

Over the years the high court has perpetrated many, many judicial howlers comparable to its attempt this year to discard the Gibbons rule.

Item: In 1994 a Supreme Court majority secretly intervened in a Judicial Discipline Commission investigation of Washoe District Judge Jerry Carr Whitehead and quashed the case. Justices also issued gag orders in an attempt to keep the public from learning of either the investigation or their role in suppressing it. Two years later Whitehead eventually resigned his judgeship rather than submit to public prosecution by the U.S. Attorney’s office. As part of the settlement, federal prosecutors agreed to not pursue the case, nor reveal the charges.

Item: In 1996 the state Supreme Court unanimously—and hilariously—held in an unsigned opinion that private homeowners associations could exercise the state power of eminent domain against other property owners. This was even though no state law granted that power to the associations and their fellow citizens would have none of the statutory safeguards that elected public officials must meet. Alarmed state lawmakers, during next Legislative session, quickly passed new law on the subject.

Perhaps the court stance most deeply destructive of the constitutional fabric of the State of Nevada has been the justices’ refusal to enforce the plain meaning of the state constitution’s separation of powers rule—Article Three, Section One. In 1993 a minor party candidate had sought to contest the election of a University of Nevada, Reno employee to the state Assembly. Brendan Trainor, a Libertarian, noted that his Democratic opponent, Jan Evans, was an executive branch employee elected to a position in the state legislative branch—a separation-of-powers conflict explicitly prohibited by Article Three, Section One.

Denied a contested-election hearing through Assembly carelessness, Trainor petitioned the Supreme Court for a writ of mandamus. The court denied the petition, saying merely, “Having reviewed the petitioner’s contest of election, we conclude that it lacks merit as a matter of law.” But the court cited no principle or provision of law to justify its judgment.

Instead, the court contemptuously flouted a basic rule of good civil procedure—that whenever a court grants or denies an order, it grants litigants the human courtesy of explaining the basis of its decision.

Most tragically, the court ignored both the plain meaning of the Nevada Constitution and the mountain of legal evidence—including decades of Attorney General opinions—that gave Trainor’s challenge overwhelming credibility.

Every Nevadan was the loser.

Steven B. Miller is policy director for the Nevada Policy Research Institute.