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Will the Silver State’s Tarnish Corrode Arizona’s Constitution?
by Mark Brnovich, The Goldwater Institute
11 August 2003

IC Friend and Goldwater Institute legal scholar Mark Brnovich argues that Arizona’s Supreme Court should avoid the kind of political decision-making used by the Nevada Supreme Court when it intervened in the budget showdown between Governor Guinn and Nevada legislators. Instead, the Arizona court has a chance to demonstrate its integrity in the upcoming case regarding Governor Napolitano’s use of the line-item veto, in which she added more items to the budget, scheduled to be heard in early September.

The Nevada Supreme Court has tarnished the Silver State’s constitution, and Arizonans will have to stay vigilant if the Copper State’s constitution is to avoid similar corrosion.

During a contentious special session this year, Governor Kenny Guinn found himself at odds with some Nevada legislators over how to fund education. As is the case in Arizona, Nevada’s constitution requires a two-thirds vote in order to increase taxes. Unable to muster enough votes to pass a tax increase, Guinn filed a lawsuit against members of the legislature to force them to provide more funding for education.

Instead of allowing the political process of negotiation and compromise to work itself out between the governor and members of the legislature, the Nevada Supreme Court took the governor’s side in the dispute. The court struck down the two-thirds supermajority requirement by determining that it was inconsistent with another constitutional provision requiring support and maintenance for public schools.

In reaching its decision, the Nevada Supreme Court violated important mainstays of judicial practice. Recognizing that the conflict was a political question, the court should have refused to accept jurisdiction. And once it had accepted jurisdiction, it should have ordered the parties to go back and reach some sort of political compromise. Instead, the court chose to insert itself into a messy political fight, and then threw its support to one side.

The six-judge majority also disregarded standard canons of constitutional construction. The more recently passed constitutional amendment requiring the two-thirds vote should have taken precedence over the older provision regarding education funding. And the court made no effort to construe the two provisions so that they would be compatible. The desired political outcome was apparently more important to the judges than preserving the Constitution and the constitutional balance among the various branches of government.

Arizonans should be concerned about the impact of the Nevada decision on our own courts. Although the decision is not binding precedent on the Arizona Supreme Court, it may nonetheless be persuasive if our own two-thirds supermajority tax increase requirement is challenged. What would our Supreme Court do in such a case? One indication may be how the court handles a recent lawsuit filed by members of the Arizona legislature against Governor Napolitano.

The lawsuit alleges that the governor exceeded her constitutional authority by using her line-item veto to change funding sources. Few people would take issue with the governor using the line-item veto power to eliminate waste or unnecessary government spending. Or, as the Arizona Supreme Court stated in 1992 in Rios v. Symington, using the line-item veto to “prevent pork barreling.” However, when the governor uses a line-item veto to restore funding and change funding sources for government programs, there is a serious question of whether she has crossed the line from executive to legislative appropriator.

The justices of the Arizona Supreme Court should focus on the question of whether the governor exceeded her authority under the Arizona Constitution, whatever they may think about the changes she made to the budget. While the justices may consider the governor’s spending increases laudable, the Constitution requires that decisions over funding choices be left to the legislature.

After the Nevada Supreme Court’s recent decision, a movement has begun to recall judges who voted to overturn the two-thirds supermajority requirement. Ironically, the director of the Nevada ACLU has warned that a recall could “politicize” the court. But it’s too late now. The problem in Nevada is not that outsiders are politicizing the court, but that the court involved itself in political matters.

Americans are rightfully proud of their independent judiciary, and we like to believe our courts are above politics. Unfortunately, that is not always the case, as the Nevada controversy demonstrates. Arizona’s judges and justices would do well to learn from the mistakes of the Nevada Supreme Court and uphold the integrity of their branch of government.

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