INFECTIOUS

California education officials want what Nevada's got. As this Oakland Tribune article and this Mercury News article note, California education chief Jack O'Connel hopes that the California courts will tell the legislature to disregard restrictive supermajority requirements for tax increases in the interest of fulfilling state constitutional obligations for education funding.

Challenges to state education financing under state constitutions have been common since the 1970s. For an overview of this litigation, see ACCESS's litigation page here. In a recent case in New York, the state's highest court ruled that the New York City public school system was not getting adequate support from the state and that the state was thus failing in its constitutionally mandated responsibility for giving its citizens a "sound basic education." Read a Philadelphia Inquirer article here and the decision in the case, Campaign for Fiscal Equity v. State of New York, here.

Again, many have argued that the Nevada Supreme Court was "disregarding the law" when it said that the legislature can ignore the supermajority requirement for tax increases if that's what's necessary in order to provide constitutionally defensible levels of free, public education. The Court would arguably have been "disregarding the law" if it hadn't claimed authority for protecting state constitutional requirements that education be funded adequately. The fact that the supermajority requirement is clear (i.e., numerical) shouldn't mean that it is any more important than the education requirement (which isn't numerical, but should exclude "lousy" education or it's meaningless, it seems to me). At the broadest possible level, the dispute is between those who don't want taxes and those who want education. There is a broad discussion going on in this country concerning how much education funding is necessary in order to fulfill state constitutional obligations. It's not clear to me why anti-tax folks should win this argument.

Education is a great issue because it dramatizes something that public opinion polls have picked up on regarding tax cuts. If you ask people if they want tax cuts or more government programs, they will choose tax cuts by a large margin. If you ask them whether they want tax cuts or more funding of education, environmental protection, and other popular programs, they prefer the spending on the programs. The strategy of anti-tax folks thus has to be to attack the programs as wasteful, ineffective, inefficient, or as "special interests." On public education, though, the anti-tax folks should not be allowed to carry the day. The Nevada case is merely one additional episode in a broader story that has implications for the future of free public education in this country.

MORE: For more critical takes on Jack O'Connell's glance eastward, see Daniel Weintraub's posts here and here, as well as another post at Claremont's blog, The Remedy. Weintraub notes that California's constitution exempts public school funding from the supermajority requirement for appropriations bills from the general fund; Weintraub thus concludes that O'Connell's suit amounts to political grandstanding. That might be; I defer to the "insider" here, given the fact that I've only been to California twice. . .

One thing I do find interesting about the federal suit in Nevada, however, is that it would seem that asking what are often contemptuously refered to as "unelected judges" to intervene in this matter is politically quite strange. As I read the Nevada Constitution, Nevada Supreme Court justices are already quite weak, institutionally speaking. They serve for staggered six year terms, are subject to popular election, and can be removed from office if 2/3 of each branch of the legislature votes to remove them. Here is Article 7, Section 3 of the Nevada Constitution (Article 7 carried the heading "Impeachment and Removal from Office"):

Sec: 3. Removal of supreme court justice or district judge. For any reasonable cause to be entered on the journals of each House, which may, or may not be sufficient grounds for impeachment, the Chief Justice and Associate Justices of the Supreme Court and Judges of the District Courts shall be removed from Office on the vote of two thirds of the Members elected to each branch of the Legislature, and the Justice or Judge complained of, shall be served with a copy of the complaint against him, and shall have an opportunity of being heard in person or by counsel in his defense, Provided, that no member of either branch of the Legislature shall be eligible to fill the vacancy occasioned by such removal.

I don't know anything about court history in Nevada, so I don't know how often removal from office has been employed as a weapon to keep judges in line (no Nevada justice has ever been impeached or removed by the legislature, see here). But Nevada judges can be impeached, recalled, and removed from office pursuant to a disciplinary board decision that they have engaged in "willful misconduct." It seems to me that the Nevada court system was designed to be institutionally vulnerable, and thus the people of Nevada have adequate means to punish the Supreme Court if they think they've gotten out of line.

MORE: Do I need to say it? The institutional weakness of the Nevada judiciary puts the lie to Rush Limbaugh's claim that "courts aren't answerable to the people." Nevada courts are answerable to the people at every election, and at least on paper they can be removed from office pretty easily.