The Horns of the Court
- Monday, June 7, 2004
"Government protects government,” observed Secretary of State Dean Heller last month.
He’d just been watching Nevada’s current Supreme Court justices bob, weave and squirm to avoid enforcing the constitutional ban on state lawmakers simultaneously holding other government jobs. Attorney General Brian Sandoval had asked justices for a definitive ruling.
Heller’s candid remark—an indiscretion apt to produce establishment scowls—implicitly acknowledged that the highly incestuous relationships of government agencies in the Silver State means more power for them and less for Nevada citizens.
The court majority’s members, again, had been revealing where their real loyalties lie: Not with the state constitution, which they regularly trash. Nor with the people of Nevada, whose rights they frequently abridge and whose pocketbooks they help loot. Rather, the justices were demonstrating anew their overriding loyalty to the common interests of Nevada’s peculiar governing class.
That, of course, is exactly what got the majority so deep in the soup last July, when they sold out Nevada’s voters, taxpayers and the state Constitution.
Reports at the time said that public-sector union bosses had promised re-election to the justices if they’d liquidate the strong taxpayer protections that Nevada voters had added to the Constitution in 1994 and 1996. But that was not all. Legal eagles hired by bosses of the biggest government-employee union in the state, the misnamed Nevada State Education Association, literally spelled out for the justices just how to ax the taxpayer protections. The rationales the NSEA advanced were far-fetched and mendacious, but to the second-raters on Nevada’s high bench, that was irrelevant. So—cribbing slavishly from the union’s brief—the court hastened to sabotage the state’s most basic law.
It no doubt sounds harsh to describe putatively august personages such as state Supreme Court justices as second-rate mediocrities. But the case, Guinn v. Nevada State Legislature, attracted a great deal of attention. And quickly a solid consensus developed among Nevada lawyers and legal experts around the country: The NSEA arguments offered by the court were—in summary—crap.
Consider the Nevada legal community’s evaluation this year of Deborah Agosti, who was chief justice of the court at the time of the July 2003 decision. “Two years ago,” wrote Las Vegas Review-Journal reporter Dave Berns, “84 percent of the 177 lawyers rating Agosti’s performance said the first-term justice should be re-elected to the job. This year that figure fell to 44 percent of 286 lawyers, the poorest showing of the six justices who were rated.” Agosti will not seek re-election.
Also seeing their numbers drop were justices Miriam Shearing, Nancy Becker, Mark Gibbons and Robert Rose—all of whom voted with Agosti. (Justice Myron Leavitt died during the survey, and so was dropped from it.) Significantly, the already positive rankings of the sole dissenter in the tax case, Justice William Maupin, increased even further. In 2002, 83 percent of 218 lawyers said Maupin should be retained in his job. This year it was 88 percent of 291.
Thus the frantic and evasive contortions of the justices at their end-of-May hearing, as they resisted making a decision, are understandable: The request of the Attorney General for a clear-cut ruling on lawmakers-in-government-jobs puts them right on the horns of a dilemma.
On the one hand the justices, now almost completely bereft of credibility, can ill afford to publicly, in the full glare of media attention, kiss off the clear and explicit meaning of the Nevada constitution’s separation-of-powers clause. Parroting the party line from the tax-consuming government unions at this juncture could trigger calls for root-and-branch reform of the state judiciary, and long-term, personal ignomy.
On the other hand, honoring the Constitution would mean disregarding the clear wishes of most powerful political coalition in the state—the bosses of those tax-consuming unions and the allied bloc of surly old-style casino overlords who want a Nevada unattractive to out-of-state business people who might threaten gamer rule. Both factions know that truthful explication of the separation-of-powers clause could eventually cost them control over the state. So a random experiment in judicial integrity here could be costly.
Finally, it’s not as though the court is itself an uninterested, uninvolved institution when it comes to ever-expanding government. Throwing out the Constitution’s taxpayer-protection provisions alone last year immediately assured the justices of an almost-30-percent budget increase.
Look for this court majority to procrastinate as long as possible, then, once again, trash the Nevada Constitution. No broad-based, competently led popular force in the state exists, at present, to hold them accountable.
Steven Miller is policy director for the Nevada Policy Research Institute.