I've read the Nevada Supreme Court opinion granting mandamus against the
state legislature, the federal complaint challenging the Nevada House's
obedience to this writ, and the brief in support of the TRO.
I've never heard of a court issuing mandamus to a legislature before and
the majority cites none. Has anyone else ever heard of mandamus to a
legislature?
The majority invokes Marbury, not for the power to issue mandamus to a
cabinet official, nor for the power of judicial review, or even for
judicial supremacy, but for judicial exclusivity: "As constitutional
construction is purely a province of the judiciary . . . " Opinion at
10-11. For a perhaps even more grandiose claim, see id. at 10 (noting the
states budget crisis and stating, "This court has been petitioned to
resolve the crisis.").
As for the federal lawsuit: How do the plaintiffs deal with res judicata
and the Rooker-Feldman doctrine? (I don't see any mention of either in the
brief.) Under 28 USC 1738, federal courts must give the same preclusive
effect to state court judgments that the state court would give, and
Rooker-Feldman reminds us that Congress has not granted the inferior
federal courts appellate jurisdiction over state court judgments. Perhaps
those who were not parties to the state proceeding are not bound by it, but
aren't the best plaintiffs in the federal case the legislators, and weren't
they defendants in the state proceeding?
Worse, a number of lower federal courts have used the Rooker-Feldman
doctrine to bar claims in federal court that would _not_ have been barred
by state preclusion law. (This development is discussed, I believe, in an
issue of the Notre Dame law review a few years addressed to
Rooker-Feldman.)
Finally, a follow-up regarding the in banc process: The Circuit Court of
Appeals for the Third Circuit used the process before specific statutory
authorization. See
Commissioner of Internal Revenue v. Textile Mills Securities Corporation,
117 F.2d 62 (3d Cir. 1940), affirmed by Textile Mills Sec. Corp. v.
C.I.R., 314 U.S. 326 (1941). For civil procedure fans, note that Hickman
v. Taylor was decided by both the district court and the court of appeals
in banc. (And despite the common practice of spelling the term with an
"e," 28 USC 46 spells it with an "i" --- "in banc.")
Ed Hartnett
Seton Hall
"Eastman, John"
<[EMAIL PROTECTED] To: [EMAIL PROTECTED]
DU> cc:
Sent by: Discussion Subject: Re: Very odd development in
the Nevada Supreme
list for con law Court decision
professors
<[EMAIL PROTECTED]
v.ucla.edu>
07/14/03 08:21 PM
Please respond to
Discussion list for
con law professors
The federal claims are legislative vote dilution, breach of the voters
right to undiluted representation, nullification of the right to vote
for a constitutional amendment, all in violation of the Equal Protection
and/or Due Process clauses of the 14th Amendment; plus a Republican
Guarantee clause claim.
The complaint, TRO, and brief, plus the court's order, are available on
the Claremont Institute's web site,
http://claremont.org/projects/jurisprudence/0030714nevada.html
Disclosure: I'm counsel of record for the plaintiffs in the case.
A parallel suit, naming the Nevada Supreme Court and its Justices as
defendants, was also filed by another attorney, on his own behalf. That
complaint is available on-line as well, but I don't have the URL at the
moment.
John C. Eastman
Professor of Law, Chapman University School of Law
Director, The Claremont Institute Center for Constitutional
Jurisprudence
-----Original Message-----
From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Monday, July 14, 2003 4:48 PM
To: [EMAIL PROTECTED]
Subject: Very odd development in the Nevada Supreme Court decision
(1) Does anyone have any idea of the specific federal change
that's being made here?
(2) I've never heard of any "en banc hearing with all district
judges" before -- can anyone help me out on this? Thanks,
Eugene
http://www.reviewjournal.com/lvrj_home/2003/Jul-14-Mon-2003/news/filing.
html
Filing challenges high court ruling
REVIEW-JOURNAL
U.S. District Judge Philip Pro temporarily restrained the action by
which the Nevada Assembly passed a tax bill with less than a two-thirds
vote. He ordered an en banc hearing with all district judges for 9 a.m.
Wednesday in Reno and Las Vegas.
The Assembly voted 26-16 Sunday for a bill that would increase taxes by
a record $788 million over the next two years.
Today, Republican lawmakers, citizens and business groups -- upset with
Thursday's decision by the state Supreme Court rejecting the two-thirds
vote requirement to pass taxes -- filed an action in U.S. District Court
seeking to block the court's ruling.
Assembly Minority Leader Lynn Hettrick, R-Gardnerville, said the federal
action is necessary because the 6-1 Supreme Court ruling allowing only a
simple majority to raise taxes is unconstitutional.
"We don't believe the court's decision that we can ignore the
constitution is legal," he said.
