Saying they have no jurisdiction to change a Nevada Supreme Court decision, the U.S. District Court on Friday rejected a complaint by Republicans attempting to block a tax package approved by the Nevada Assembly.
That dissolved the restraining order hanging over lawmakers and set the tax bill in motion again as the Senate and Assembly set up a conference committee to see if they can find a compromise both houses can support to pass it.
Late in the day, however, an emergency petition was filed with the Ninth Circuit Court of Appeals in San Francisco to reinstate the order.
That emergency petition serves notice that the Republican lawmakers and some Nevada business people intend to appeal the decision.
The decision by all seven Nevada federal district judges says a district court "has no authority to review final judgments of a state court in judicial proceedings." That authority is reserved to the U.S. Supreme Court.
That issue was raised repeatedly during Wednesday's hearing before the panel in federal court. They said long standing rules have prevented federal district courts from changing the constitutional rulings of state supreme courts. Those issues must go directly to the U.S. Supreme Court.
Nevada's highest court ruled a week ago that the state constitutional mandate requiring a two-thirds vote to raise taxes must give way to the constitutional provision requiring the state fund public education. All of the justices except Bill Maupin supported the ruling directing the Legislature to proceed under simple majority rule to pass funding for education.
The decision has been assailed by Republicans as ignoring the wishes of the people who voted for the two-thirds requirement.
Legal scholar John Eastman argued they weren't challenging the Nevada court ruling directly but instead challenging the Assembly's decision to use it to pass a tax bill by simple majority.
The federal court ruled those lawmakers can ask for reconsideration by the state court or take the issue directly to the U.S. Supreme Court. But they said district court "cannot grant the relief requested by the Legislator Plaintiffs without voiding the decision of the Nevada Supreme Court."
"The only federal court suitable to address those claims is the United States Supreme Court," the opinion states.
The opinion describes the complaint as "artfully drafted" for including non-legislators among the plaintiffs. Eastman's argument was they were being damaged by the passage of the tax bill and therefore have a right to sue whether or not the legislators involved in the state court action have that right.
The federal judges again disagreed because, "This court cannot provide the relief they request without passing judgment on the highest state court's interpretation of its own constitution."
The simple majority issue may be moot in the case of Senate Bill 6 since a majority of the Senate opposes the bill as amended by the Assembly. In addition, both Senate Majority Leader Bill Raggio, R-Reno, and Assembly Speaker Richard Perkins, D-Henderson, have said the goal is to pass something by a two-thirds majority and get the battle out of the courts.