It’s understandable if you don’t remember Sylvia R. Lazos, a professor of law at the William S. Boyd School of Law at UNLV. But people who pay really close attention will remember that she wrote an op-ed in the Review-Journal back in 2003, defending the Nevada Supreme Court’s infamous Guinn v. Legislature decision.

A little history

For those who don’t remember that travesty, here’s a brief summary: Back in 2003, the state Legislature was struggling to pass a budget. Money for every state function but education had already been approved, and all that remained was the education budget and a tax plan that would pay all the bills.

But a group of Republicans in the Assembly had enough votes — 15 — to keep the budget from being passed, thanks to a voter-approved requirement that said the Legislature needed a two-thirds vote to raise taxes.

When the budget deadline passed, Gov. Kenny Guinn sued, asking the state Supreme Court to force the Legislature to pass a tax plan that would fund the schools budget, which is also required by the state constitution. And that’s where things got horribly awry.

The justices, in essence, said the requirement to fund schools was a “substantive” requirement, whereas the requirement to get a two-thirds vote to raise taxes was a “procedural.” And the procedural must fall in the face of the substantive. It wasn’t so much overturning the express will of the voters as simply ignoring it.

The ruling was so bad, so shocking in its foolishness that even the Legislature ignored it, fearing a voter backlash. The court itself said the ruling shouldn’t be considered precedent, as clear a warning sign as any that it was flawed. Ultimately, the Legislature ignored it, too, approving a tax plan with a two-thirds majority. Meanwhile, Guinn v. Legislature spawned a series of unsuccessful appeals, all the way to the U.S. Supreme Court.

Enter Lazos, who asked the R-J if she could opine on the ruling. On July 22, 2003, she became the only person in the world — before or since — to describe the court’s ruling as “Solomonic” and to declare the justices were “public servants” for taking the political heat that the Legislature wouldn’t.

Her op-ed was filled with all sorts of questionable logic and misstatements of fact. For example, she scoffed at the initiative process, saying it takes but 10 percent of the voters to place an initiative on the ballot, and they’re easy to get approved “…if proponents do a good job of campaigning and persuading the public.” She forgot to say that it takes a majority of voters to approve an initiative and, in the case of the constitution-amending two-thirds requirement, two votes at two successive general elections.

She said that justices “see themselves as the ultimate keepers of the constitution and therefore guard outcomes of [the] heated political process, which may or may not comply with the constitution.” Then again, if the voters amend the constitution in the manner prescribed by the constitution, the amendment is, by definition, constitutional.

She asserted that the court merely interpreted the constitution and did not defy the voters. “The general intent of the voters may have been to limit government spending and taxes, but the mechanism through which this sentiment was put in place [the two-thirds initiative] altered the structure of government making it more likely that it lapse into bickering and gridlock.”

But the court didn’t have to guess what the voters intended. The voters told them what they intended! By passing the initiative, the clear message was that they wanted the Legislature to muster a two-thirds vote before it could raise taxes. The argument that it would gum up the works was made loud and clear during both campaigns for the initiative, in 1994 and 1996, and the voters decided to approve it anyway. And, since the education funding requirement is also a part of the constitution, we may further intuit that the voters wanted BOTH schools funded AND two-thirds majorities to raise taxes.

“Solomonic solution”? Only if by “Solomonic,” you mean “totally opposite of the wisdom of King Solomon.”

The final irony? After several appeals were rejected, and the issue had faded away, the state Supreme Court this month in an unrelated case overturned the central “substantive-procedural” holding in Guinn v. Legislature. “The Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision,” the court wrote.

Now that’s Solomonic.

Modern times

All of which brings us to today, where Lazos — now the Justice Myron Leavitt Professor of Law at Boyd — has once again taken to her keyboard to write yet another op-ed for the R-J. And once again, she’s defending the state Supreme Court.

How can she praise them for making the ruling and then praise them for overruling themselves? Good question. Let’s take a look.

• “There is another view. Nevada’s high court justices are doing a good job in crafting rules which make sure that the initiative process produces good laws.”

Yes, that’s another view all right. Here’s yet another: Tomorrow, we will ride to work on the back of a magical unicorn after first galloping to the end of a rainbow, where a nice leprechaun will give us his pot of gold along with a giant Hershey bar (with almonds) that won’t make us fat(ter) because, after all, it’s magic.

Of the two views, we’d say the unicorn-leprechaun-nonfat chocolate bar thing is more likely.

See, in the most recent cases, the state Supreme Court has been all over the map. We’ve blogged about it recently, so there’s no need to repeat what we’ve argued herein except for this: In one case (the Tax and Spending Control initiative) the court ruled that because it broke the rules, it would be stricken from the ballot. But in another case (the eminent domain/PISTOL initiative) it ruled that even though the initiative broke the rules, a modified version could still go on the ballot. The kicker? Those rulings were issued on the same day.

• “So in July 2003, Nevada justices did the job they were elected to do and took the heat for a political mess not of their own making.”

You know, something has always bothered us about statements like that. Because, in our view, the justices didn’t do their jobs; they did the opposite of what they should have done. And what they should have done was:

a.) Nothing. The court could simply have refused to intervene, saying that the constitutional requirements are plain, and the Legislature had a duty to act. Given that the Legislature ultimately did act, and in a constitutional way, a ruling that did great violence to one portion of the constitution simply wasn’t needed.

b.) Set a clock. The court could also have ruled that the Legislature had a certain number of days to pass a budget and a tax plan, perhaps 10 calendar days, after which the court would take action. This deadline may have given the Legislature more urgency in its deliberations.

c.) Drastically intervene, but do it in accordance with the constitution, not in contravention of it. If the court wanted to fix the problem, it could have said this: “As the third co-equal branch of government, we are not empowered to raise taxes or pass laws. Therefore, we hereby order that the money already appropriated by the Legislature for other state services immediately be used to fund the schools budget — at the same rate it was funded in the last biennium. The Legislature, if it wishes, may now go back and pass a tax plan to fund those things from which we just subtracted money. But since paying for schools is a fundamental requirement of the state constitution, and the Legislature is deadlocked, this extreme intervention is justified. Good night, and good luck.”

• “Fast forward to 2006. The court’s TASC and PISTOL decisions, like its decision in 2003, are aimed at ensuring that Nevada’s initiative process enhances democratic law making, rather than creates chaos,” Lazos wrote.

Please, professor: By applying different standards to similarly situated initiatives, and by making up constitutional law seemingly at whim, the court has gutted democratic lawmaking and in the process created chaos! TASC and PISTOL, the court found, violated initiative law at some point. Yet TASC was stricken while a modified version of PISTOL remains. Explain how that “enhances democratic law making”! And by ignoring, and then recognizing, a key constitutional provision, the court has created uncertainty about the state of almost every law in the state. How will the court rule on this, and will that ruling remain intact and for how long?

• “Under the Nevada Constitution, voters have a role in making law. Neither Guinn nor the most recent decisions undermine this principle. However, law drafting is an art that requires precision, whether the lawmaking is done by initiative or legislative process,” Lazos wrote.

How more precise can you get than this: “Except as otherwise provided in subsection 3, an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.” — Nevada Constitution, Article 4, Section 18(2).

It doesn’t take a “trained lawyer” to read and understand that. The voters read and understood it. They approved it. Twice. By large majorities, both times. Yet, when it was inconvenient, the Supreme Court rejected it. And yet Lazos argues that Guinn “doesn’t undermine” the principle that voters have a role in making law?

• “The TASC ruling abandons this doctrine [the substantive/procedural distinction], which in fact the Nevada court never applied post-Guinn. This partial overturning does not undermine the core of Guinn. Courts have the responsibility to make initiatives work and figure out the intent of the voter when voter-approved rules conflict with other constitutional provisions,” Lazos writes.

The core of Guinn was the substantive/procedural distinction, so yes, the core of Guinn was overturned. And it’s a good thing, too, since it rested on a legal foundation as firm as a house of cards in gale-force winds. And once again, the most obvious interpretation — that voters wanted schools funded AND a two-thirds vote to raise taxes — is the correct one.

• “Personal politics may lead one to disagree with this court’s decisions. But it is fair to conclude that Nevada’s justices are doing the job that they were elected to do, ensuring that Nevada’s form of democratic governance works in the real world,” Lazos concludes.

Oh, personal politics may lead one to disagree with the court’s ruling? How about this mind-blower: Personal politics WERE AT THE HEART OF the court’s decisions. Certainly, rules of logic and legal interpretation weren’t.

Let us add here that our personal politics are totally in line with the absurd results of the court’s rulings: We dislike and disagree with the two-thirds supermajority requirement to raise taxes. We wanted to see schools fully funded in 2003, and we wanted to see a tax plan pass. Those results are in line with our personal politics. But the method by which we get there — ignoring the constitution — is repugnant to the very rule of law itself, and a professor of law should hardly be heard to endorse the nonsense that would embarrass a first-year con law student.

Having said that, we agreed with the court that the TASC ruling should be stricken, for failing to comply with the statutes pertaining to initiatives. And we agreed with the court that the PISTOL initiative also failed to comply with initiative rules. Had we been on the court, we would have voted to strike both, under the same metric: Break the law, lose the ballot.

But the court didn’t do that. Once again, they made up the rules in a sorry, ad hoc game that has the rule of law at stake. We would think that everyone — trained lawyers or not — would see how dangerous that is.

Full disclosure: We at Various Things & Stuff are not trained lawyers. We got our legal education from watching L.A. Law, Law & Order, The Practice, JAG and from hanging out in courtrooms during a misspent youth writing for newspapers. Our views do not carry the force of law.

It was an eventful weekend folks — CityLife took home an impressive 13 first-place awards in the Nevada Press Association’s Better Newspapers Contest! Hooray for CityLife! All told, the paper took in 32 total awards. Our hearty congratulations to our colleagues up north at the Reno News & Review, who garnered the top prize — general excellence — along with a class-leading 34 individual honors. Good job, Reno!

Yet, despite the celebrating, we’ve still got work to do. And, as the classic commercial used to say, it’s time to make the Quick Hits. Here we go!

• Political pop quiz. True or false: The Nevada Republican Party is challenging congressional candidate Tessa Hafen over her residency. The answer is at the bottom! No peeking!

• Now, this is ironic. Last week, over at the Las Vegas Sun, reporter Abagail Goldman penned a story decrying the “navel-gazing gallery of local political consultants and pundits [who] are at full froth, grumbling and gloating that [Clark County Sheriff candidate Jerry] Airola’s campaign seems to be in some state of crisis — hiring and firing the help because the house isn’t clean.”

Wow. Somebody’s trying to impress the boss by writing exactly like him.

But who does Goldman quote later in her story. None other than one of those self-same, navel-gazing local pundits, George “The Knappster” Knapp! And where did the Knappster’s writings appear? Why, in CityLife, of course, a little fact that Goldman seems to have forgotten.

We love the navel-gazing Knappster around here, mostly because his navel contains the best stories in town, including the one about Airola allegedly exaggerating his academic credentials while running a water-purification business, the way it’s alleged he did with his law-enforcement background. That’s a navel-gazing scoop, Knappster!

(By the way, congrats to our own Knappster for winning the second place award for best explanatory journalism in the aforementioned press association contest for his collaboration with us on the blockbuster story about the Las Vegas Monorail, “Juice Train.” We couldn’t have done it without the Knappster and his miracle navel.)

• Only in Nevada, folks.

The law: “It is unlawful for any person to take all or part of any tips or gratuities bestowed upon his employees. … Nothing contained in this section shall be construed to prevent such employees from entering into an agreement to divide such tips or gratuities among themselves.” (NRS 608.160)

The facts: The Wynn Las Vegas has decided to take the tips earned by casino dealers and put them into a combined pool, from which they are divided among all customer-service employees, including those who supervise dealers. (Employees were reluctant to leave more lucrative dealers’ jobs to become supervisors, lest they lose tip income.) Scores of dealers complained to the state labor commissioner, charging the practice was illegal.

The result: Labor Commissioner Michael Tanchek ruled it was … perfectly OK! As long as the tips are being divided among customer service personnel, and nobody else, the practice isn’t illegal, he said.

The spin: “We believe in the program, and we believe it was the right thing to do for our property. We wouldn’t have implemented it if we didn’t think it was lawful. The most important thing we can do right now is press ahead, continue to provide information and answer questions and hope that people make a judgment based on real information.” — Wynn Las Vegas President Andrew Pascal

The kicker: $273.4 million — second-quarter 2006 revenue of Wynn Resorts

• Quotable: “Even though we waived the appeal in San Diego, that should not be taken as a concession that he committed a crime down there.” — Attorney Dominic Gentile, on one of the terms of client Lance Malone’s plea bargain in the G-sting corruption case.

Oh, no, counselor. We would never assume that Malone admits his guilt. You will forgive us, however, if we go ahead and infer his guilt from the fact that HE WAS CONVICTED BY A JURY IN SAN DIEGO, won’t you?

• U.S. Rep. Jim Gibbons is downright offended that state Sen. Dina Titus would dare question how he represents his constituents, including the big, fat corporate donor ones.

Sure, Gibbons has taken $262,839 from energy and natural resources interests over his career, according to OpenSecrets.org, the website of the Center for Responsive Politics. Sure, he’s taken more than $685,000 from miscellaneous business interests during his tenure on Capitol Hill. Sure, six of his top 10 contributors are either gambling or mining companies.

But aren’t they people, too?

“Corporations such as the mining industry and the gaming [sic] industry are very important to the state of Nevada. I do a lot of work for them. They employ a large amount of people. Their voices need to be represented. But I have never sold my office for a political contribution. I have never sold my vote,” Gibbons told the Review-Journal.

Oh, heavens no. There was that business about jawboning the Delta Air Lines lobbyist and then getting a job offer quickly thereafter, but that’s totally different from selling the office. That’s leveraging the office. Or something.

Anyway, we’re amused to see this business about “their voices need to be represented.” See, we always thought their voices are represented, because they have huge amounts of money to spend on lawyers, lobbyists and political contributions. It’s the regular folk who have voices that aren’t generally represented who need someone to speak for them.

Is there anybody out there in the governor’s race who’s for that?

• U.S. Rep. Bob Ney, R-Ohio, admits taking bribes from people including disgraced lobbyist Jack Abramoff. In response, U.S. Rep. Jon Porter agrees to follow his own policy and donate the $11,000 or so he’s received from Ney to charity.

The real sorry thing: That Porter needs to have a policy about what to do with contributions from felonious colleagues in the first place.

• North Las Vegas is apparently ready to ask voters if they think the First Amendment should apply in their city. We’re guessing the answer will be no.

• And finally today, the answer to the political pop quiz is: False! The Nevada Republican Party isn’t challenging Hafen’s residency; in fact, the party is claiming she broke the law when she voted in Nevada elections from 1998 to 2004, while she was living in Virginia and working for U.S. Sen. Harry Reid.

But the party says in its complaint to the Clark County registrar of voters that “It should be equally clear that we do not challenge Ms. Hafen’s right to vote in the 2006 election. She appears to be residing here in Nevada at the moment.”