State Con Law Case of the Week: No Deference When “Language Is Plain”

Anthony Sanders · May 14, 2021

One of the beauties of state constitutions is that they often contain structural protections against government power that aren’t in the U.S. Constitution. Although the federal version has plenty of guardrails on the Leviathan—such as enumerated powers, separation of powers, advice and consent for executive officials, the veto with a two-thirds override, lifetime tenure for judges, etc.—it’s fairly sparse compared to what’s in a lot of the states’ fundamental laws. Especially after a number of financial and corruption scandals in the mid-nineteenth century, states put a lot of explicit barriers to government power, especially legislative power, in their own constitutions.

But those concerns didn’t end back then. Even to this day states—who usually can amend their constitutions much more easily than the U.S. Constitution—experiment with new ways to keep government limited. And at least in one case, decided this week in Nevada, the courts are capable of protecting those limits and asserting their independence in engaging with them.

Nevada’s constitution was adopted in 1864, after two constitutional conventions, when worries of legislatures being captured by special interests, such as the railroads, were high. (Fun, random, fact: A stenographer of the first convention was a young Samuel Clemens, a/k/a Mark Twain!) The people of Nevada can amend their constitution through initiative, and in keeping with the convention’s spirit, did so in the 1990s to require that when passing a bill “which creates, generates, or increases any public revenue in any form” that two-thirds of each house of the legislature must approve it. Thus, a simple legislative majority won’t do if the legislature wants to raise more money.

But, in 2019 the legislature tried to do that anyway. In 2015 it adopted two different revenue measures, a $1 technology fee on DMV transactions, and an adjustment to payroll taxes that allowed a reduction under certain conditions (which later, in 2018, were met). In 2019 the legislature then reapproved the $1, as it was set to sunset in 2020, and changed the payroll tax law to eliminate the reduction. This 2019 legislation was one vote short in the state senate of two-thirds of the chamber. But the governor signed it anyway, sparking a lawsuit from the senators in the minority who claimed the legislation was void because it violated the two-thirds clause.

The state argued that these tax and fee increases really weren’t “increases” because they didn’t “create” the new revenue but simply maintained what was in place before. The state supreme court rejected this, stating that under the “plain language” of the constitution the 2019 legislature changed the law from what it would have otherwise been, as the fee would have sunset in 2020 and the payroll tax would have been reduced. The legislation “creates, generates, or increases” the fee and the tax just as if it were brand new.

Most interestingly for us at the Center for Judicial Engagement was the court’s refusal to “defer” to the legislature’s interpretation: “We reject any contention that we should defer to the Legislature’s interpretation of the supermajority provision. We give no such deference when a law’s language is plain, as it is here.” Whether the language is plain or not, that’s something courts do all too often in constitutional litigation, so this assertion of judicial independence was wonderful to see.

The case will have implications for another case pending before the court, involving Nevada’s Educational Choice Scholarship Program, a need-based school choice program funded by private donations incentivized by tax credits. Some of those tax credits were repealed without a two-thirds majority, even though repealing tax credits increases state tax revenues. The case was argued earlier this year and turns on the same provision in Nevada’s constitution.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.