Nevada Law Journal
Publication Title (Abbreviation)
The constitutional crisis of 2003 was a defining event for Nevada and may prove instructive for the rest of the nation. Among the prominent features in the topography of the crisis were (1) state constitutional provisions that required two-thirds legislative approval for tax increases but only simple majority approval for spending increases and (2) the State Supreme Court’s decisions in Guinn v. Legislature that ended the immediate impasse. Both are focal points of continuing controversy.
Criticism of the Guinn decision has exceeded praise of it – probably in frequency, certainly in passion and rhetorical exuberance. In my view, much of the criticism has been misplaced. At least equal criticism should attach to the State's constitutional structure. The tension between the supermajority tax provision and the simple majority spending provision was a train-wreck waiting to happen.
I am not among the fans of the Guinn decision. I do not think the court made the best decision among the alternatives available to it. Rather, I should say, the court did not make “the least bad decision.” That more precise phrasing acknowledges the following fact: there was no good alternative available to the court in the case. Because of the tensions internal to the State Constitution and the impasse into which the political branches of the State government had worked themselves, whatever decision the court made would have entailed harm to some portion(s) of Nevada’s constitutional structure and values. When no good alternative exists, those with the responsibility to decide deserve more understanding and less rebuke.
Part I of this Article briefly describes the facts. Part II explains why, given Nevada’s constitutional structure, the court had no good alternatives in Guinn. Part III considers the supermajority tax provision. It argues that focusing on taxes, instead of on spending, undercuts the educative role that politics can play and ultimately distorts the limited-government agenda the provision was intended to advance.
© 2004 Steve R. Johnson
Steve R. Johnson,
Supermajority Provisions, Guinn v. Legislature and a Flawed Constitutional Structure, 4
Available at: http://ir.law.fsu.edu/articles/260