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Nevada Supreme Court rules that words actually have meanings

Michael Schaus
Michael Schaus
Opinion
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Nevada Supreme Court building in Carson City

In a high profile ruling last week, the state Supreme Court finally brought some clarity to what the word “any” means when used in the state Constitution. 

It seems unlikely that many people (other than legislative lawyers) actually had uncertainty about the meaning of the word. Nonetheless, the high court provided its legal definition in a recent opinion, thanks to a 2019 dispute over extended payroll taxes and DMV fees.

In 2019, Democrats passed a pair of bills that prevented the expiration of one tax and the scheduled rate decline of another. They did so without the constitutionally required two-thirds majority support in both chambers—a requirement that applies to any bill “which creates, generates, or increases any public revenue in any form.” 

Legislative lawyers and Democratic leadership argued that the bills in question didn’t actually “increase” revenue—they merely eliminated scheduled reductions in rates, and were therefore not subject to the two-thirds provision. However, bills designed to provide the state tax dollars it would not otherwise receive are hard to define as anything other than an attempt to ‘create, generate or increase’ revenue in some form. And so, Republicans filed a lawsuit after the passage of the bill. 

Last week, Nevada’s Supreme Court justices unanimously sided with Republicans on this specific point—going so far as to include the legal definition of the word “any” in its explanation of why both bills were subject to the two-thirds provision of the Nevada constitution. 

Of course, no reasonable person would expect Democrats (or any political party for that matter) to respond to such a court loss with nuanced legal analysis. However, their statement chiding Republicans for taking them to court over such behavior was—as The Nevada Independent’s editor, Jon Ralston, candidly put it on Twitter—a “masterclass in sophistry.” 

“It is disheartening that Nevada families must pay a price for a lawsuit from colleagues who were unwilling to stop playing partisan politics with our children’s education dollars," Democratic leaders said in a statement, as if certain unconstitutional behavior is inherently excusable merely because it advances a particular policy agenda.

To be fair, the response from Democrats is entirely predictable—maybe even understandable—for two important reasons. First, the nature of our political era is such that everything is the fault of the other team… even when it isn’t. Secondly, thanks largely to such tribal politicization, virtually every action of America’s judicial branch is seen through an increasingly partisan lens nowadays. 

Judicial rulings are routinely criticized by political partisans for their policy implications rather than for their jurisprudence. In national outlets, justices are increasingly identified as “conservative” or “liberal,” “Republican” or “Democrat”—despite the fact that justices often rule in ways that displease the political factions responsible for actually putting them on the bench. 

As Cato’s Ilya Shapiro argues, much of the reason for such a politicized view of the judiciary is due to the fact that, at least on the federal level, lawmakers have made a habit of delegating much of their lawmaking responsibilities to the executive branch—thereby making litigation an inevitability.   

The 2019 tax hikes were an example of a similar form of routine legislative irresponsibility. 

From the beginning, Democrats must have known their actions would spark a potential constitutional challenge. In the years before these bills were passed in such a way that prompted the state’s high court to define the word “any,” legislative lawyers had given guidance that similar tax-extensions were subject to the two-thirds provision. Only when legislative defeat seemed certain did Democratic leadership decide to rely on an imagined loophole to that plainly worded, voter-approved, constitutional provision. 

The Republican challenge to these bills was, in other words, not an unforeseeable event. 

However, the gamble Democrats took—hoping their unconstitutional behavior might be excused or even ignored by the court—isn’t a strictly partisan behavioral trait. In today’s political climate, both major parties seem more than willing to risk putting the judicial branch in the middle of policy battles if it means even a slight chance of moving their preferred agendas forward. (Just look at what Florida Republicans are currently doing to regulate social media.)

Such a party-over-process mentality was fully transparent last week, as Nevada Democrats feigned outrage over the Republican lawsuit rather than providing a nuanced reaction to… well, the actual ruling. 

The disappointment felt by Democrats who believed such tax increases were a necessary policy accomplishment is understandable—but, in a democratic republic, process matters. And regardless of how one might feel about the policy or logistical implications of the court’s ruling, those feelings are completely irrelevant to whether or not the court ruled the correct way

More to the point, if someone wants to argue that those tax increases were necessary to fund critical government services, they should have done so convincingly enough in 2019 to garner the constitutionally required level of support. 

Instead, the state’s highest court had to define the word “any” to make clear what should have been obvious to everyone two years ago: Words have meanings, and those meanings matter. 

Michael Schaus began his professional career in the financial sector, where he became deeply interested in economic theory and the concept of free markets. Over a decade ago, that interest led him to a career in policy and public commentary—working as a columnist, a political humorist and a radio talk show host. Today, Michael is director of communications for the Nevada Policy Research Institute and lives with his wife and daughter in Las Vegas. Follow him on Twitter at @schausmichael.

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