For those interested in the Rooker-Feldman issue in the Nevada litigation, our reply brief addressing the matter is now available on-line at http://www.claremont.org/static/nevada_reply.pdf
Also, I've enjoyed reading the speculation abut the possibility of a cert petition. Does anyone think that possible when no federal issue was raised in the Nevada Supreme Court proceedings? Merely because federal issues arose as the result of the decision? I am very interested in hearing what the experts on this list think. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -----Original Message----- From: Edward A Hartnett [mailto:[EMAIL PROTECTED] Sent: Tuesday, July 15, 2003 8:19 AM To: Discussion list for con law professors Cc: [EMAIL PROTECTED] Subject: [fedcourts] 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.
