How is the Nev S Ct different in its assumption that it is the only remaining branch to deal with the crisis different from the Supreme Court majority's actions in *Bush v. Gore* and more particularly the issuance of the stay and Scalia's opinion there? Of course, *Bush v Gore's* extension of EP may play a role here in the claims of the plaintiffs, too? I'm not saying I think this is a great decision or that the opinion is great by any means, but when the US S Court claims it is the sole interpreter of the US Constitution in a number of cases (see Larry Kramer's Harv. L rev article for example) and decides presidential elections, I don't know that it is so bizarre for a *state* S Ct to assume the same role as interpreter of the state constitution. And courts sometimes do have to make law, create doctrine, out of political messes--at least I agree with HLA Hart that courts do exercise discretion and engage in acts of power. (Others of course have good reasons to say otherwise) And no, I am not affected by the decision at this point, since the higher education budget stuff was passed and this involves K-12, though I suppose one could say as a Nevada state public education employee, I should just not say anything. best Lynne
----- Original Message ----- From: "Edward A Hartnett" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Tuesday, July 15, 2003 8:18 AM Subject: Nevada Supreme Court & federal action > 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.
