THE SIXTH DAY

Carson City (Monday), June 30, 2003

Senate called to order at 11:14 a.m.

President Hunt presiding.

Roll called.

All present.

Prayer by Senator Rawson.

Our heavenly Father, we are thankful for our blessings. We recognize that a few thoughtful people have this process in their hands. We ask for Thy Spirit to be with them. Help them to be able to find a proper resolution to our problems and to the problems of the State. We ask You to be with us in the Name of Jesus Christ.

Amen.

Pledge of allegiance to the Flag.

Senator Raggio moved that further reading of the Journal be dispensed with, and the President and Secretary be authorized to make the necessary corrections and additions.

Motion carried.

remarks from the floor

Remarks by Senators Raggio, Titus, Rawson, O'Connell, Schneider, Amodei, Neal and Tiffany.

Senator Mathews requested that the following remarks be entered in the Journal.

Senator Raggio:

Thank you, Madam President. I had hoped we would have something under Order of Business No. 6, Messages from the Assembly. However, we do not.

My understanding is there is much ongoing discussion to try to reach a compromise on the funding of the budget. At this point, there is nothing to report.

There have been discussions with our Legal Counsel as to what procedures would be followed in the event we are unable to reach a decision and litigation would be filed. At this point, there is not a great deal of information on the litigation. If sometime, today, that appears to be the situation, I will ask our Legislative Counsel to come and explain the procedures and discuss the problems that might occur. It is my observation that it ought to be the last resort. It would be difficult to achieve a result that is in the best interest of the State if this goes to litigation. The outcome of litigation is difficult to anticipate, but as a lawyer, I tell you, litigation can take strange turns. Usually, no one wins.

This is a situation where under the prospect of legislation, everybody has to accommodate the issues and concerns that are legitimate on the part of all who have taken positions on this. I am hopeful we can use the hours, today, to reach an agreement that something will occur, and we can get back together.

Senator Titus:

Thank you, Madam President. I rise in agreement with the Majority Leader. We need to do everything we can to avoid going to court.

In the decade I have served in this Legislature, I have seen the power of this body whittled away. It is a shame because we are the most accessible and accountable of the three branches. We really do represent the people.

Over the years, we have limited our sessions to 120 days, giving the Executive Branch more power while we are not here. We have placed term limits on ourselves, again, giving the Executive and Judicial Branches more authority because our turnover is greater. We have imposed a super majority, giving rise to the tyranny of the minority, again, stifling the voice of the people we represent.

Moreover, to admit we cannot get the job done and go to court will set a very bad precedent. In the future, every time we do not do what someone wants, they will go to court seeking a writ of mandamus. The Supreme Court will then make policy not the Legislature.

It may not make much of a difference to those of us who are here and who want to go home. However, it will make a tremendous difference as to the role this body plays as an institution. I hope we work hard, today, and avoid going to court so the integrity of the Legislature can be preserved.

Senator Rawson:

Thank you, Madam President. We have not said many things this session or the preceding sessions about our colleagues because we have been stressed and have come to an unnatural ending. I want to note a few things.

One of my forbearers, Edward Rawson, June 29, 1679, read the first Thanksgiving proclamation in this country. It was a time when people gave everything they had for those they lived with. They lost over half of their population. There is a lot we should be thankful for now. We have the ability to solve these problems. We can do it in a way that does not stress our people anywhere near to the stress that has occurred many other times during our history.

I appreciate the time I have served with this body. I do not know what will happen due to our failure to resolve these problems. I know the public has a right to be upset with us. However, no one can question the work ethic, sincerity or dignity with which the Senate worked together. We can all be proud of our effort.

Senator O’Connell:

Thank you, Madam President. I would like to ask either Senator Neal or Senator Raggio about S.J.R. No. 2 of the 68th Session which was a resolution sponsored by Senator Raggio. It came out of Government Affairs and dealt with the court case of Missouri vs. Jenkins. It reflects the issue, we are about to face, with the Court making a decision on taxes for Missouri. It had to do with desegregation and the funding of the school district. S.J.R No. 2 of the 68th Session stated that the Courts could not impose a tax. I wonder if you could give me the result. Did anything ever happen as far as Congress taking any action on the matter?

Senator Raggio:

To the distinguished Senator, I can tell you what little I know about that case. I think your questions are more appropriately directed to Legislative Counsel. Our Counsel is prepared at any time to come in here and tell the entire Senate, the Assembly or individual caucuses what the problems are and what can result from any litigation such as is being suggested in a petition for mandamus.

The case you reference, which took place in Missouri, dealt with the issue of desegregation. In that situation, the U. S. Supreme Court held that the lower court did not have the right in that situation to impose the tax. It did order the school district, which had the right to levy a tax, to do so and to override the limit set by the Legislature. In effect, it said in those circumstances, and for the purposes indicated in that case, to implement desegregation, the school district had the obligation and the duty to levy a tax and ordered it do so. The Court did not do so itself. It said the Court could not levy a tax under those circumstances. As to whether or not they can do so in this situation, I do not have the answer. The Legislative Counsel has not shown me any cases that indicate that a court can do that.

The issue is unclear. Our Legislative Counsel has opined that it could be ugly and could be protracted. A lot can occur. It is the most undesirable situation and would set a precedent, in my opinion, which would be very undesirable. Some may think it is great, may think, “I will be a martyr. The Court will order us to do something.” My understanding is that under those circumstances, the Court could say that this Legislature has enacted a budget, and that is the law of the State. The Constitution requires that the Legislature fund schools, general government and the needs of the State, not just education. The budget would include all of those things, not just education. The Court would likely say there is a constitutional duty on the part of the Legislature to fund the budget. The Court will not say a different amount. It will say to fund the budget already passed. As one probability, it could order us to do that. It could find the Legislature as a body in contempt if it failed to pass the tax bill after a certain length of time. These are all scenarios as they have been presented to me. Not just those in the Legislature who have not voted to fund, but everyone in the Legislature would be held responsible. Where it can go beyond that, I do not know.

Legislative Counsel has shown me a few cases. Clearly, the Court has the authority to order the Legislature to perform its constitutional duty. As to what the consequences are beyond that, I do not know any because, in most cases, Legislators have followed that directive. You have most of the information that has been given to me. I do not know anything beyond that. At some point, as I suggested if we are not getting any closer, I will invite the Legislative Counsel to come here and to respond to any of these questions.

Senator Schneider:

Thank you, Madam President. The tyranny of the minority was talked about by our forefathers when Thomas Jefferson took pen to paper and wrote the Constitution. Here, the voters of this State thought the super minority was a good idea. Now, we see the results of that thought. This House has done its job. We have sent a tax plan, a budget to the other House, but the minority is refusing to go along with anything we have sent them.

I spoke to the Assembly Minority Leader two days ago. He has one budget number. It is his own personal number that will determine if he will vote for something. He has three people that will vote for nothing. He has another three people who are in the $700-million budget range. He has another three people who are below $600 million. What is the number? I think we need to tell them to put something in writing.

We meet everyday when the Majority Leader calls us together. We are ready to act, but we do not know what we are going to act upon because the other House cannot give us a number. I am prepared to vote on something. I have voted three times already.

It is incumbent upon the minority in the other House to put something in writing. I am tired of sitting here wasting my constituents’ time and money when the other House will not negotiate in good faith.

If the number is zero, then put it down, and let us go from there. If it is $700 million or $600 million, put it down. I have not seen anything in writing for they will not reduce anything to writing. It is about time they act in the sincere interest of the State of Nevada.

Senator Amodei:

I agree with many things the Minority Leader stated and with what my other colleague from Clark County discussed, but when we talk of minorities in the context of the situation we find ourselves in today, the one thing not indicated is the process by which we find ourselves needing the 2/3-majority vote. It was a process imposed upon us by the voters of this State in an initiative petition.

Whether we like that, or not, we now have to pass a plan by a two-thirds majority. A 2/3‑majority vote was placed in the State Constitution by the voters.

I agree this is the branch of government closest to the people. Depending upon which plan is under consideration, some of us find ourselves in the majority one day and the minority the next. We might find ourselves as a part of the two-thirds majority or not part of the two‑thirds majority, but the mechanism that requires a super majority in this conservative fiscal State is something that was put into place by none other than the voters.

Before we start criticizing people for doing what they sincerely believe, the fact that it requires a two-thirds majority to pass is something that has not been done by any Senator or Assembly member or by any caucus. It was done by the voters of this State. People should be reminded of that, at least, occasionally. Instead, the one-third minority is criticized for doing what they think is, sincerely, correct. I say that, not because I want this to go on past today or because I wish it had not gone on this far, but because we are dealing with the 2/3-majority situation. I assume the voters knew what they were doing and thought that, before we did anything in regard to taxes, two-thirds of us ought to agree upon that. That is something lost from the rhetoric to date, not necessarily in these Chambers but in the way it is being reported.

While I may not agree with everything going on in the other House, I do agree that the voters of this State knew what they were doing when they requested that two-thirds of each House agree upon any of the provisions in the bill. To those industries and those individuals who criticize those who do what they believe is correct, I would invite you to explain to the voters of the State of Nevada the folly of their imposition of a two-thirds requirement, tell them how they have imposed the tyranny of the minority, tell them how they have brought this State, in the context of this session, to melt-down and how they ought to be chastised for that. Maybe the voters of the State ought to be thrown out? Let us get to facts. The reason we are in this situation is that the voters of this State wanted two-thirds of us to agree upon anything we did to them. That is what is playing out.

Senator Neal:

I agree with the Senator from Carson City in his analysis of the situation in which we find ourselves. We are in this situation because of the initiative petition, but as I see this scenario as it is being played out, when the initiative petition was proposed, no one told the voters of the conflict we would have with the provisions already existing in the Constitution under Article 9, section 2, subsection 1. That is the requirement that we balance the budget. When we attempt to carry out our duties, we then find ourselves in a stalemate. I do not think this is what was intended by the voters. A stalemate does not operate this government. If we put this issue before them with the two provisions I have mentioned, the two-thirds majority and Article 9 of our Constitution that requires us to balance this budget, I think the public would have a different opinion. They would have to change it in some way where no decision has been made to serve the needs of the State, in light of our current situation.

Senator O'Connell asked a question about the Jenkins case. I was here when we proposed the resolution about the Jenkins case. I agree with the Majority Leader’s explanation. One of the problems we face is that we have no statutory provision but a constitutional provision that requires us to act. When you have those provisions, case law seems to suggest that the courts can move in and order you to do something. Since there are three branches of government, it will be difficult for a court to order us to vote. Those provisions in the Constitution are clear that the powers inherent in the Legislature are distinct from those of the Judicial Branch. None should impose on the other their duties and responsibilities. Even though as the Majority Leader has indicated that this question might be reached by serving a writ of mandamus, I am doubtful whether or not if that writ can tell us we have to vote, and if not, you will be held in contempt. I do not think it will go that far. What I do see is the Court could order the tax department to levy taxes sufficient to take care of the needs of the State.

As the Jenkins case indicated, the school districts such as Clark County could bring a lawsuit stating we have not funded education. We are mandated to do so. If we do not do that, the school districts can bring lawsuits to have someone, whether the Governor or the Department of Taxation, impose taxes sufficient to fund the needs of the State. These issues are the ones that confront us. Hopefully, the members of the other House will recognize if we do not do our job, the Court will.

It would be interesting to see what they would do. At least, there would be a precedent set for the future as to what could be done should we fail to pass a tax to fund the needs of the State. I would hope that wiser minds will come to a conclusion, and there will not be a need for court action. If court action does come, we will not be the beneficiary of it but, more likely, the victims. That might be bad because it would reflect negatively upon the State. It would say that we were unable to accomplish our job.

It is not just those individuals holding up the action in the other House. It might be that whatever they send back to us might be unacceptable, and we might hold it up, too. It depends upon the bill as it comes back. I have thoughts about what we included in the bill we sent to the other House, and if those thoughts were changed, then most of us might vote against those changes.

The question of two-thirds majority is an opened one. How might it hinder or enlighten us for the future to keep this from happening again? Someone indicated to me that a two-thirds vote is no better than a majority vote. If you do not have a majority according to our Constitution, nothing passes. It does make it difficult as the number goes up. There must be 14 in favor for the two-thirds majority instead of 11 for a majority in this House. The people have asked us to work with this restriction. As I understand the Constitution, the last amendment passed, governing an activity, is the one that is controlling. The two-thirds majority rule was passed after Article 9, subsection 2 that requires us to provide for the needs of the State. Maybe we should have a court work this problem out for us because the public has placed this upon us. I have not heard anyone propose we go back to the public to make those changes. This is the situation we face. We are going to have to live with it until there is direction outside of this Legislature be it in our Court, here, or the federal court or whoever the court might be. They will give some direction as they have many times throughout this country when direction has been needed in other areas of states’ constitutions where there was a conflict between our constitutional duties and responsibilities in meeting the needs of the people.

I do not believe that the Supreme Court of Nevada will tell us, as a sitting body and as one of the three branches of government, to vote on these taxes. If they did, they would be in violation of portions of the Constitution dealing with the separation of powers. They are supposed to interpret constitutional measures which conflict in a way that will give each equal weight. If they interpret two-thirds majority to give equal weight to the balancing of the budget, the only way the Court will be able to do that is to direct the Governor or a taxing agency within the State to impose the taxes that already exist in this State. As I have said before, if that should happen and we find ourselves in court, I hope they will look at the most popular tax favored by the people which is the gross gaming tax. If the Court forced an increase in the gross gaming tax, I think the people would be satisfied. The Court would have done a tremendous job for this Legislature.

Senator Tiffany:

Thank you Madam President. I would like to ask a question. I know there have been a few times when the budget and the taxes have not been signed by the Governor until after July 4. It is my understanding that a law is not passed until the Governor signs the bill. There have been times when we have been in regular session as late as July 9. I do not understand why June 30 has to be a drop-dead date and that the Governor has decided to draw a line in the sand and sue us. Who can answer that question for me?

Senator Neal:

Once we pass a bill and the Governor knows he has it in hand to sign, then the business of the State can be carried out until he affixes his signature to the bill for it to become a law. That is what has happened in the past. We make an effective date on a measure later than July 1. Some times the law has changed that date to October 1. When the Governor has a bill before him, he is assured the revenue measures are there, then he can wait the maximum number of days to sign that bill. Some Governors have done that.

Senator Raggio:

Much has been said here, today. I do not know if we have convinced anyone of anything or if we have learned a lot. We need to exercise diligence to work with the other House and within our own House to reach an accommodation today. I do agree with what has been said today, especially, on the 2/3-vote requirement for it is a constitutional requirement. The voters voted for it. I probably voted for it. I do not believe that when the voters voted for it, they wanted a minority to be able to say, “it is our way or no way.” That was not the publics’ intent. When I voted for it, it was not my intent. What we wanted was to have an assurance that more than a majority could support something because then it would indicate stronger support. Obviously, the public did not know they were voting for something so that a minority could say, “my way or no way.” I am not pointing fingers. This means we have to work harder. It should not be based on whether you are the majority or minority in this House or the other House to say, “I am not budging. It is my way or no way.” Everyone has to work to have some accommodation in this process.

Madam President announced that if there were no objections, the Senate would recess subject to the call of the Chair.

Senate in recess at 11:52 a.m.

SENATE IN SESSION

At 8:32 p.m.

President Hunt presiding.

Quorum present.

Senator Raggio moved that the Senate adjourn until Tuesday, July 1, 2003 at 8 a.m.

Motion carried.

Senate adjourned at 8:33 p.m.

Approved: Lorraine T. Hunt

President of the Senate

Attest: Claire J. Clift

Secretary of the Senate