Justices of
Juice
Nevada’s high court proclaims itself above the law
By Steven Miller
BusinessNevada
Early this month
the Nevada Supreme Court attempted to put behind it the
well-deserved infamy it earned from its 2003 decisions in
Guinn v. Legislature.
Unfortunately, attentive reading of the court’s recent
decision on PISTOL — the “People’s Initiative to Stop the
Taking of Our Land” — reveals a court majority that remains as
infected with black-robe fever as ever.
Indeed, considered from the standpoint of America’s Founders,
Nevada’s high court continues to militantly insist on getting
its constitutional priorities exactly backwards.
James Madison stated the appropriate constitutional order in
1803. At the time, a politically vengeful federal government
was exploiting its courts and the unconstitutional Alien and
Sedition Acts to persecute political opponents.
In that context, the primary author of the American
Constitution reminded his countrymen of the correct
relationship between a sovereign people, their constitution
and their government:
“The authority of constitutions over governments and of the
sovereignty of the people over constitutions, are truths which
are at all times necessary to be kept in mind.”
Madison
was recalling the fundamental ideas embodied in America’s
Declaration of Independence:
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That it is to secure “certain unalienable Rights” that
“Governments are instituted among men…”
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That those governments derive “their just Powers from the
consent of the Governed, and …
-
“[That] whenever any Form of Government becomes destructive
of these Ends, it is the Right of the People to alter or to
abolish it.…”
Yet here in Nevada, on September 8, Nevada’s high court ruled
— with no dissenters — that the voters of the Silver State
have no constitutional right, via their constitutional
initiative power, to alter any rules governing the Nevada
judiciary!
This breathtaking demonstration of arrogance — and
transparently disingenuous reasoning — was elicited by
provisions of the PISTOL initiative that sought to reform
systemic abuses of the justice process in Nevada that this
same court has long indulged. Those abuses contribute
significantly to this state’s reputation for judicial
corruption.
One PISTOL provision, Section 3, would have limited Nevada
courts’ mushrooming practice of issuing “secret,” or
unpublished, judicial opinions. Such rulings are excluded from
the list of legally citable, officially precedent-setting
cases. They thus allow Nevada judges to surreptitiously ignore
precedents that should bind them — and also to sweep bad or
corrupt decisions under the rug.
As PISTOL co-author Kermitt Waters has written, “if State
Supreme Court decisions are not result oriented, then they
should be published for the public to read and rely on as the
law of the land for future generations.” The term, “result
oriented,” it should be observed, is lawyer-speak for judicial
corruption — first defining the decision desired, and then
concocting specious rationales for it.
Two other provisions of the PISTOL initiative, Sections 8 and
9, would also have enforced greater judicial accountability.
Currently, some Nevada courts, when faced with eminent domain
cases where powerful special interests want a certain
decision, will switch-out elected judges who might find it
politically difficult to issue the “results-oriented”
decisions desired.
Substituted instead are unelected senior judges who do not
answer to the voters and thus can rule, with essential
impunity, as desired by the special-interests — often
government agencies or “connected” corporations. The two
sections required elected judges for eminent domain cases and
gave property owners the same peremptory challenges at
appellate courts as they have in district courts.
The rationale the Supremes used for killing these three
judicial-reform provisions was striking. In part it was the
unconscious resort to remarkably tone-deaf pettifoggery. More
significant long-term, however, was the brazen attempt of the
court to turn America’s founding principles on their head.
“The people’s initiative power,” asserted the court, “is
[only] ‘coequal, coextensive, and concurrent’ with that of the
Legislature” And since the constitutional separation of powers
prevents state lawmakers from requiring administrative reforms
within the state judiciary, so also — say the Supremes — the
people of Nevada are similarly hobbled.
In short, according to the Nevada Supreme Court, the people of
Nevada can never move to reform the state court system, but
instead must simply submit and endure.
In any matter they think “administrative,” these justices
proclaim, they are above any law other than their own!
So much for Madison’s “sovereignty of the people over
constitutions” and “the authority of constitutions over
governments”!
This court’s repudiation of Guinn v. Legislature was merely
political. These remain “justices of juice” — as addicted as
ever to ad hoc “results-oriented” rulings.
Now publicly committed to erasing your constitutional rights
to control your own government, they should be driven from
office.
While we still can.
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Steven Miller is editor of BusinessNevada and policy director
for the Nevada Policy Research Institute.
