After that new anti-Brian Sandoval ad — produced by the Committee to Protect Nevada Jobs — came out on Monday, I wrote an analysis of the piece that concluded parts of it were untrue. Specifically, I took issue with a claim in the ad that said Sandoval used the courts to raise taxes. A brief excerpt:
Sandoval personally intervened and used the courts to pass an $800 million tax increase. Again, not true. Yes, Sandoval filed the lawsuit. That was his job as attorney general. (He recently criticized the current attorney general for her refusal to file a lawsuit as directed by the governor over the new health-care law.) But he only used the courts to get a writ compelling the Legislature to perform a constitutional function that it was refusing to perform. And, as discussed above, in the end it was the Legislature — not Sandoval and not the courts — that raised taxes. Again, the most that can be said is the lawsuit added pressure on the Legislature to pass a balanced budget, which in this case was akin to raising taxes.
Alas, I was wrong in one important aspect.
An alert reader pointed me to a column I wrote for the Review-Journal back in those days, in which I analyzed the lawsuit Sandoval filed against the Legislature after lawmakers repeatedly failed to pass a budget to fund Nevada schools, and the necessary taxes to fund it. In that piece, I took issue with the state’s case thus:
Third, however, the court should deny the remedy outlined in Guinn’s supplemental petition, wherein Attorney General Brian Sandoval maintains the Legislature has “committed itself” to raising about $860 million in new taxes, and argues that the court should set various amounts of taxes to be raised or even take over the budget-writing process. Precisely how the Legislature balances the budget and funds schools is a matter exclusively within the purview of elected lawmakers, not the court. So while justices can compel the Legislature to act, it cannot prescribe the manner in which it does its job. That includes Guinn’s decision on whether to reopen the budget to cut increases in spending, and the particular type of taxes eventually employed to balance the budget.
That paragraph sent me back to the file containing many of the court papers from the later-overturned case, Guinn v. Legislature. And I was surprised to find in two different petitions — signed by then-AG Sandoval himself — a request that the courts order the Legislature to raise taxes. In the original July 1, 2003 petition for writ of mandamus, for example, Sandoval asks the court to find the Legislature in violation of the state constitution for not passing a budget, order them “…to appropriate an amount sufficient for the support and maintenance of the common schools,” and
“3. Direct the Legislature and its members to act by a time certain to comply with Article 9, Section 2 of the Constitution of the State of Nevada by providing by law for an annual tax sufficient to defray the estimated expenses of the state for the fiscal years commencing July 1, 2003 (FY04), and July 1, 2004 (FY05).”
And again, in Sandoval’s July 7, 2003, supplemental brief in support of the petition for the writ of mandamus, Sandoval outlines “another possible resolution of the current impasse is for this court to: … 4. Direct the Legislature by a time certain to comply with Article 9, Section 2 of the Nevada Constitution by providing by law for an annual tax sufficient to defray the annual estimated expenses of the state for the fiscal years commencing July 1, 2003 (FY04) and July 1, 2004 (FY05) … 5. Advise the Legislature that if it has not complied with the Court’s direction by the time specified, the Court will take whatever action it deems necessary to fund the [schools budget] and balance the state budget…”
Finally, as I reported in the R-J back in 2003, Sandoval’s petition identifies an outstanding budget deficit in 2003 of more than $857 million, and says. “The unfunded balance of $857,613,682 is the amount of new revenue the Legislature has committed itself to raise. By passing the general fund budgets and establishing the amount needed for the [schools budget], the Legislature has already decided how much revenue is needed The only issue left to them is which types of revenue are needed to fund that amount.” (emphasis in original)
Therefore, my statement in Tuesday’s blog that the ad was wrong when it said Sandoval personally intervened and used the courts to pass an $800 million tax increase is itself wrong. Although it was the Legislature, and not the courts acting at Sandoval’s suggestion, that eventually raised taxes, Sandoval did use the courts in an attempt to force the Legislature to increase taxes by at least $857 million.
It should be noted that Sandoval did not, himself, tell the Legislature to raise taxes. He told lawmakers (before the start of the new fiscal year on July 1, 2003) that the tax decision was theirs to make. But once the July 1, 2003 date passed without a budget, Sandoval did take a position, and it was in favor of asking the courts to order the Legislature to raise taxes.
I regret the error.
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