138 Nev., Advance Opinion ye
IN THE SUPREME COURT OF THE STATE OF NEVADA
CARYNE SHEA, INDIVIDUALLY AND No. 82118
AS NEXT FRIEND OF HER MINOR
CHILDREN A.S. AND M.S.; VENECIA
SANCHEZ, INDIVIDUALLY AND AS
NEXT FRIEND OF HER MINOR CHILD
Y.S.; BETH MARTIN, INDIVIDUALLY
AND AS NEXT FRIEND OF HER
MINOR CHILDREN R.M. AND H.M.;
CALEN EVANS, INDIVIDUALLY AND
AS NEXT FRIEND OF HIS MINOR
CHILD C.E.; PAULA ARZOIAN,
INDWIDUALLY AND AS NEXT
FRIEND OF HER MINOR CHILD A.A.;
KAREN PULEO, INDIVIDUALLY AND
AS NEXT FRIEND OF HER MINOR
CHILDREN J.D. JR., JAS. D., AND JAC.
D.; CHRISTINA BACKUS,
INDIVIDUALLY AND AS NEXT
FRIEND OF HER MINOR CHILD D.B.;
CAMERON BACKUS, INDIVIDUALLY
AND AS NEXT FRIEND OF HIS
MINOR CHILD D.B.; AND
ALEXANDRA ELLIS, INDIVIDUALLY
AND AS NEXT FRIEND OF HER
MINOR CHILDREN L.E., M.E., AND
B.E.,
Appellants,
vs.
THE STATE OF NEVADA; THE STATE
OF NEVADA DEPARTMENT OF
EDUCATION; JHONE EBERT,
NEVADA SUPERINTENDENT OF
PUBLIC EDUCATION, IN HER
OFFICIAL CAPACITY; AND THE
STATE OF NEVADA BOARD OF
EDUCATION,
Respondents.
SUPREME COURT
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(n) I947A 4rgo
)2.11,70,
Appeal from a district court order of dismissal in a civil action
seeking declaratory and injunctive relief. First Judicial District Court,
Carson City; James E. Wilson, Judge.
Affirmed.
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Bradley S. Schrager
and Daniel Bravo, Las Vegas; Educate Nevada NOW and Amanda J.
Morgan, Las Vegas,
for Appellants.
Aaron D. Ford, Attorney General, Heidi J. Parry Stern, Solicitor General,
Steven G. Shevorski, Chief Litigation Counsel, and Sabrena K. Clinton,
Deputy Attorney General, Carson City,
for Respondents.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, HARDESTY, J.:
Appellants are nine parents, individually and as next friends of
their minor children, who are students attending public schools in the
districts of Clark, Washoe, and White Pine Counties (collectively, Shea).
Respondents are the State of Nevada, the Nevada Department of Education,
Jhone Ebert, in her official capacity as Nevada Superintendent of Public
Education, and the Nevada State Board of Education (collectively, the
State), all of whom are responsible for implementing Nevada's public
education policy.
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Shea filed a complaint against the State alleging that Nevada's
system of public education has failed its students, as evidenced by the
States ongoing poor rankings and continued failure to achieve the
standards that she contends are required for a sufficient, basic education
under Article 11, Sections 1, 2, and 6 of the Nevada Constitution. The
district court dismissed the complaint, determining that Shea's claims
presented nonjusticiable political questions. We conclude, after clarifying
our jurisprudence regarding the political question doctrine, that the plain
language of the relevant constitutional provisions demonstrates a clear,
textual commitment of public education to the Nevada Legislature by
granting the Legislature broad discretionary authority over such matters.
Because Shea's claims are inextricably linked to the textual commitment of
public education to the Legislature under the Nevada Constitution, we
conclude that her claims are nonjusticiable. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
Shea filed a complaint for declaratory and injunctive relief in
the First Judicial District Court. Among other things, Shea alleged that
years of inaction by the State and inadequate funding by the Legislature
created a systemic failure within Nevada's public education system. Shea
contended that, because of these shortcomings, Nevada's students are illequipped to succeed in higher education and future careers. Shea
challenged the adequacy of the Nevada public education system, arguing
that the amount of funding and other resources provided by the State fall
hideously short of the sufficiency required by the Nevada Constitution,
state law, and the various• benchmarks established by the Nevada
Department of Education. Shea alleged that the States deficiencies created
a public education system that fails to meet the standards of a basic,
sufficient, uniform, and constitutional education by continually failing to
3
provide adequate physical facilities and classrooms, access to adequate
learning instrumentalities, adequate teaching in classes of appropriate size,
and reasonably current basic curriculum.
Shea supported her claims with various statistics that she
alleged evince the States failure to meet the needs of the states diverse
student population. Shea asserted causes of action based on the State's
purported failure to provide Nevada's students with a qualitatively and
quantitatively sufficient education as required by Article 11, Sections 1, 2,
and 6 of the Nevada Constitution (the education clauses).2 Shea sought
declaratory and injunctive relief, requesting that the district court, among
other things, (1) declare that a sufficient education is a basic right under
the Nevada Constitution, (2) declare that the Nevada public education
funding system is inadequate to provide or guarantee the basic right of a
sufficient education in violation of the Nevada Constitution, (3) enjoin the
State from implementing any school finance system that does not meet the
"While we take judicial notice of the public statistics cited in Shea's
complaint and opposition to the motion to dismiss, addressing any concerns
purportedly raised by such statistics rests squarely on the shoulders of the
Legislature under the Nevada Constitution for the reasons explained in this
opinion.
2Additionally, Shea claimed that the States public education funding
system violates students' due process rights under Article 1, Section 8(2) of
the Nevada Constitution. Shea fails, however, to offer any cogent
arguments on appeal specifically showing how due process rights are
implicated here. Accordingly, we decline to consider this issue. See Gonor
v. Dale, 134 Nev. 898, 902 n.2,
432 P.3d 723, 726 n.2 (2018) (refusing to
consider an argument not addressed by appellants on appeal); Edwards v.
Emperor's Garden Rest., 122 Nev. 317, 330 n.38,
130 P.3d 1280, 1288 n.38
(2006) (stating that this court need not consider claims that are not cogently
argued or supported by relevant authority).
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sufficiency required by Nevada law and policy, and (4) retain jurisdiction
until the court ensures that the State's public education financing system
comports with the sufficiency requirements established by the court.
The State moved to dismiss for failure to state a claim pursuant
to NRCP 12(b)(5). The State argued, in pertinent part, that Shea's claims
presented nonjusticiable political questions. The district court granted the
State's motion to dismiss with prejudice based on the political question
doctrine. Specifically, the district court determined that Article 11 of the
Nevada Constitution textually commits Nevada's education policy to the
Legislature. The district court emphasized that the Nevada Constitution
grants the Legislature discretion to (1) appropriate the amount of money it
deems to be sufficient to fund public school operations and (2) determine
what programs and processes should be adopted to provide for a uniform
system of public education in Nevada. Additionally, the district court found
that the aspirational nature of the education clauses does not mandate or
guarantee a public education system of a particular quality or quantity or
attainment of specific educational outcomes. The district court also found
that it is inappropriate for the judiciary to resolve issues relating to the
adequacy of the public education system because it lacks judicially
discoverable and manageable standards to effectively resolve such issues
and would require the judicial branch to make public policy in violation of
the separation of powers guarantee. Shea appealed.
DISCUSSION
An order granting an NRCP 12(b)(5) motion to dismiss is
reviewed de novo. Buzz Stew, LLC v. City of North Las Vegas, 124 Nev. 224,
228,
181 P.3d 670, 672 (2008). A decision to dismiss a complaint under
NRCP 12(b)(5) is rigorously reviewed on appeal, with all factual allegations
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in the complaint presumed true and all inferences drawn in favor of the
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complainant. Id. at 227-28, 181 P.31 at 672. Dismissing a complaint is
appropriate "only if it appears beyond a doubt that [the plaintiff] could prove
no set of facts, which, if true, would entitle [the plaintiff] to relief." Id. at
228,
181 P.3d at 672.
Shea's complaint presents a nonjusticiable political question
The State argues that while an adequate education of a
particular level of quality is good public policy, the education clauses of the
Nevada Constitution do not permit the courts to participate in decisions as
to what constitutes an adequate education or what level of education
funding is sufficient. We agree.
The political question doctrine
"This court has a long history of requiring an actual justiciable
controversy as a predicate to judicial relief." Citizens for Cold Springs v.
City of Reno, 125 Nev. 625, 630,
218 P.3d 847, 850 (2009) (internal quotation
marks omitted). "The separation of powers doctrine is the most important
foundation for preserving and protecting liberty by preventing the
accumulation of power in any one branch of government." Berkson v.
LePome, 126 Nev. 492, 498,
245 P.3d 560, 564 (2010). The Nevada
Constitution allocates governmental power between "three distinct and
coequal branches of government, as set forth in Article 4 (legislative),
Article 5 (executive), and Article 6 (judicial)." Id. "The Legislature enacts
laws, and in turn, the executive branch is tasked with carrying out and
enforcing those laws." N. Lake Tahoe Fire Prot. Dist. v. Washoe Cty.
Comm'rs, 129 Nev. 682, 687,
310 P.3d 583, 587 (2013) (internal quotation
marks omitted). The judicial branch has "the authority to hear and
determine justiciable controversies" and "to declare what the law is[,1 or has
been." Id. (alterations in original) (internal quotation marks omitted). "As
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coequal branches, each of the three governmental departments has inherent
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power to administer its own affairs and perform its duties, so as not to
become a subordinate branch of government." Berkson, 126 Nev. at 498,
245 P.3d at 564 (internal quotation marks omitted).
"The political question doctrine stems from the separation of
powers essential to the American system of government." N. Lake Tahoe
Fire Prot. Dist., 129 Nev. at 686,
310 P.3d at 586. "This doctrine exists for
one very important reason—to prevent one branch of government from
encroaching on the powers of another branch.'" Id. (quoting Conmen on
Ethics v. Hardy, 125 Nev. 285, 292,
212 P.3d 1098, 1103 (2009)). "Under
the political question doctrine, controversies are precluded from judicial
review when they revolve around policy choices and value determinations
constitutionally committed for resolution to the legislative and executive
branches." Id. (internal quotation marks omitted).
In North Lake Tahoe Fire Protection District , this court formally
adopted the Baker3 factors to assist in determining whether an issue
presents a nonjusticiable political question. Id. at 688, 310 P.3d at 587.
Specifically, this court considers whether there is
"a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and
manageable standards for resolving it; or the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court's
undertaking independent resolution without
expressing lack of the respect due coordinate
branches of government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of embarrassment
3 Baker v. Carr, 369 U.S. 186 (1962).
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from multifarious pronouncements by various
departments on one question."
Id. (quoting United States v. Munoz-Flores,
495 U.S. 385, 389-90 (1990)); see
also Baker, 369 U.S. at 217. However, while we recognized that "Mlle
political question doctrine . . . provides for a narrow exception limiting
justiciability," N. Lake Tahoe Fire Prot. Dist., 129 Nev. at 687,
310 P.3d at
587, we stated that "fal determination that any one of these factors has been
met necessitates dismissal based on the political question doctrine," id. at
688,
310 P.3d at 587. This statement did not, however, sufficiently convey
the narrowness of this exception.
In Baker, the United States Supreme Court recognized that,
"[u]nless one of these formulations is inextricable from the case at bar, there
should be no dismissal for non-justiciability on the ground of a political
question's presence." 369 U.S. at 217 (emphasis added). As the Supreme
Court persuasively reasoned, "Mhe doctrine . . . is one of 'political
questions, not one of 'political cases.' The courts cannot reject as 'no law
suit' a bona fide controversy as to whether some action denominated
'political' exceeds constitutional authority." Id. Therefore, we take this
opportunity to clarify North Lake Tahoe Fire Protection District and to
expressly hold that, in Nevada, dismissal based on the political question
doctrine requires a showing that the political question has an inextricable
link between one of the Baker factors and the controversy at issue.
Here, as noted, the district court dismissed the complaint
pursuant to NRCP 12(b)(5), citing the political question doctrine.
Specifically, the district court concluded that a political question existed
based on two of the Baker factors: a textual commitment of public education
to the Legislature in Article 11 of the Nevada Constitution and, because of
the complex nature in administering a statewide system of public education,
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"the courts . . . lacked judicially discoverable and manageable standards to
effectively resolve those issues."
The Nevada Constitution makes a textually demonstrable commitment
of public education to the Legislature
When determining whether there is a textually demonstrable
commitment of an issue to a coordinate branch of government under the
first Baker factor, we note that the commitment need not be explicit.
Alperin v. Vatican Bank, 410 F.3d 532, 549 (9th Cir. 2005). Rather than
relying on explicit language, courts "are usually left to infer the presence of
a political question from the text and structure of the Constitution." Id.
(quoting Nixon v. United States, 506 U.S. 224, 240 (1993) (White, J.,
concurring)). In that vein, the State argues that the aspirational nature of
Article 11's plain language and the broad discretion granted to the
Legislature to establish education policy evince the framers intent to
textually commit education solely to the Legislature. The State contends
that the expansive authority granted to the Legislature to frame and enact
laws regarding public education provides the Legislature with almost
plenary authority, except where expressly limited by the state or federal
constitution. We agree.
Unless a constitutional provision is ambiguous, we apply it in
accordance with its plain language. Nevadans for Nev. v. Beers, 122 Nev.
930, 942,
142 P.3d 339, 347 (2006). Further, "the Nevada Constitution
should be read as a whole, so as to give effect to and harmonize each
provision." Id. at 944,
142 P.3d at 348. The plain language of the education
clauses does not create an obligation for the Legislature to provide public
education at a particular service level or to provide specific educational
outcomes. In Schwartz v. Lopez, we previously observed that "the Nevada
Constitution contains two distinct duties set forth in two separate sections
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of Article 11—one to encourage education through all suitable means
(Section 1) and the other to provide for a uniform system of common schools
(Section 2)." 132 Nev. 732, 749-50,
382 P.3d 886, 898 (2016).
Section 1, we indicated, contains an aspirational legislative
duty "to encourage the promotion of educational endeavors in specified
areas and leaves the determination of the types of programs and services,
and the quality of education, provided to public school students within the
Legislature's broad discretion. Id. at 747, 382 P.3d at 897 (emphasis
omitted). As we noted, " ful se of the phrase 'by all suitable means' reflects
the framers' intent to confer broad discretion on the Legislature in fulfilling
its duty to promote education. Id.
We indicated that Section 2 likewise grants wide discretion to
the Legislature, explaining that Itlhe legislative duty to maintain a
uniform public school system is not a ceiling but a floor upon which the
[L]egislature can build additional opportunities for school children."
Schwartz, 132 Nev. at 750, 382 P.3d at 898 (internal quotation marks
omitted); see also Campaign for Quality Educ. v. State, 209 Cal. Rptr. 3d
888, 897 (Ct. App. 2016) (construing the analogous provisions of the
California Constitution and stating that the text of these two sections
together "speak [ ] only of a general duty to provide for a [uniform] system
of common schools and does not require the attainment of any standard of
resulting educational quality"). Of significance, we recognized that
"although the debates surrounding the enactment of Article 11 reveal that
the delegates discussed the establishment of a system of public education
and its funding, they also . . acknowledged the need to vest the Legislature
with discretion over education into the future." Schwartz, 132 Nev. at 747,
382 P.3d at 897 (citing Debates & Proceedings of the Nevada State
10
Constitutional Convention of 1864, at 565-77 (Andrew J. Marsh off. rep.
1866)).
Similarly, nothing in the plain language of Article 11, Section 6
of the Nevada Constitution requires public education be funded at a certain
level or to achieve certain educational outcomes. As we have previously
recognized, the education clauses require the Legislature to fund public
education, but "the Legislature is not required to . fund[] education at
any particular level." Rogers v. Heller, 117 Nev. 169, 176,
18 P.3d 1034,
1038 (2001). To be sure, "concerns about the public funding of education[
are of significant statewide importance [to the citizens of this state,1 . . . so
much so that our Constitution was amended [in 20061 to require the
Legislature to sufficiently fund public education before making any other
appropriation." Schwartz, 132 Nev. at 744, 382 P.3d at 895. But the plain
language of Section 6, even as amended in 2006 to prioritize education over
other appropriations, explicitly leaves the determination of funding
sufficiency to the sole discretion of the Legislature. Indeed, when the people
of Nevada amended the Constitution in 2006, they unmistakably gave their
representatives in the Legislature unfettered discretion to enact
"appropriations to provide the money the Legislature deems to be
sufficient . .. to fund the operation of the public schools." Nev. Const. art.
11, § 6(2) (2006) (emphasis added); accord Campaign for Quality Educ.,
209
Cal. Rptr. 3d at 901 (stating that nothing in the plain language of
California's education clauses creates a "constitutional mandate for the
Legislature to provide funds for each child in the State at some magic level
to produce . . an adequate-quality educational program'" (quoting Serrano
v. Priest,
569 P.2d 1303, 1307 n.6 (Cal. 1977))). Therefore, we conclude that
the plain language of Article 11, Section 6 of the Nevada Constitution vests
11
sole discretion to determine the sufficiency of Nevada's education funding
in the Legislature.
In sum, reading the education clauses as a whole, so as to give
effect to and harmonize each provision, shows that the Nevada Constitution
confers broad, discretionary authority to the Legislature to (1) encourage
various educational pursuits, (2) provide for a uniform system of common
schools, and (3) fund education at a level that it deems to be sufficient.4
While some courts have concluded that separation of powers
does not preclude judicial review of a legislatures public education funding
decisions, courts in states with constitutional provisions similar to Nevada's
have found these issues to be nonjusticiable political questions because of
the textual commitment granting their legislatures broad, discretionary
authority over public education. See Campaign for Quality Educ., 209 Cal.
Rptr. 3d at 903 (holding that California's education clauses "do not allow
the courts to dictate to the [1] egislature, a coequal branch of government,
how best to exercise its constitutional• powers to encourage education and
provide for and support a [statewide] system of common schools"); King v.
State, 818 N.W.2d 1, 17 (Iowa 2012) (stating that the constitutional "text
and history of [Iowa's education] clause indicate a commitment of authority
Shea asserts that adequate education funding is a concern to all
4
Nevadans. However, she does not argue that the States funding
mechanism violates Article 11, Section 2 of the Nevada Constitution or the
Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution. Cf. Serrano v. Priest (Serrano I), 487 P.2d 1241, 1254-55 (Cal.
1971) (holding that the structure of the education funding system in
California denied students equal protection). Because Shea did not raise
such a challenge in the district court, we do not decide this question on
appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52,
623 P.2d 981,
983 (1981) ("A point not urged in the trial court . . . is deemed to have been
waived and will not be considered on appeal.").
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to the general assembly"); Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778,
792, 794 (R.I. 2014) (stating that "the Rhode Island Constitution imposes
an affirmative duty upon the General Assembly to promote public schools"
and declining to interfere with the legislative duty of implementing a
system of education); see also State ex rel. Harvey v. Second Judicial Dist.
Court,
117 Nev. 754, 763,
32 P.3d 1263, 1269 (2001) (explaining that where
constitutional language is like that of "a sister state, it is presumably
adopted with the construction given it by [its] highest court").
We conclude that the plain language of Nevada's education
clauses demonstrates a clear, textual commitment of public education to the
Legislature by granting the Legislature broad, discretionary authority to
determine public education policy in this state.5 Thus, even if couched in
terms of judicial review, opining as to the adequacy of public education
funding and the allocation of resources in this state would require us to
50ur dissenting colleague relies on decisions from states whose
constitutions lack this plain delegation of authority to the state legislature
regarding whether the legislature has met its constitutional duties as to
education. See, e.g., Delawareans for Educ. Opportunity v. Carney, 199 A.3d
109, 140 (Del. Ch. 2018) (quoting the Delaware constitution's Education
Clause, which contains no language giving the Delaware Legislature the
authority to determine whether it satisfied its constitutional duties under
that clause); Gannon v. State,
319 P.3d 1196, 1209 (Kan. 2014) (quoting the
Kansas constitution, which similarly lacks such language); Cruz-Guzman v.
State,
916 N.W.2d 1, 7 (Minn. 2018) (same regarding the Minnesota
constitution); Neely v. W. Orange-Cove Consol. Indep. Sch. Dist.,
176 S.W.3d
746, 752 (Tex. 2005) (same regarding the Texas constitution). Thus, while
we agree with the dissent that the educational clauses of Nevada's
constitution impose a duty on the Legislature to provide a basic education—
as we recognized in this decision and in Schwartz, 132 Nev. at 749-50, 382
P.3d at 898—the plain language of Nevada's constitution belies the dissent's
conclusion that the Legislature lacks the sole authority to determine
whether it met that duty.
13
venture into issues that entail quintessential value judgments that the
Nevada Constitution expressly entrusts to the broad discretion of the
Legislature. See Heller v. Legislature, 120 Nev. 456, 466,
93 P.3d 746, 753
(2004) (concluding that claims regarding the qualifications of Legislators
are not justiciable because the Nevada Constitution expressly commits that
function to the Legislature); see also Woonsocket, 89 A.3d at 793 (declining
to aimpos[e] our own judgment over that of the Legislature in order to
determine whether a particular policy benefits public education"). We
decline to do so. Shea's complaint raises issues that are more properly
resolved in the Legislature or by initiative petition. Therefore, we conclude
that the district court properly determined that the education clauses
demonstrate a textual commitment of public education to the Legislature.
The allegations of Shea's complaint are inextricably linked to this
constitutional textual commitment.6 Thu.s, we affirm the dismissal on this
basis.
CONCLUSION
The Nevada Constitution textually commits broad,
discretionary authority to the Legislature over public education. We
conclude that the claims in Shea's complaint do not present justiciable
questions appropriate for adjudication. Consequently, judicial review is
6Because we conclude that the Nevada Constitution's education
clauses demonstrate a clear textual commitment of public education to the
Legislature, we need not address whether judicially discoverable and
manageable standards exist or whether judicial involvement would require
courts to make public policy decisions.
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precluded by the political question doctrine. Accordingly, we affirm the
district court's order granting the State's motion to dismiss.
Hardesty
We concur:
C.J.
Parraguirre Stiglich
J.
Pickering
Herndon
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CADISH, J., dissenting:
[Elducation is perhaps the most important function
of state and local governments. . . . It is required in
the performance of our most basic public
responsibilities . . . . It is the very foundation of
good citizenship. Today it is a principal instrument
in awakening the child to cultural values, in
preparing him for later professional training, and
in helping him to adjust normally to his
environment. In these days, it is doubtful that any
child may reasonably be expected to succeed in life
if he is denied the opportunity of an education.
Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). Nearly 70 years ago, the
United States Supreme Court thus recognized the intrinsic importance of
education as a vital function of state government, and the Nevada
Constitution has long reflected this truth. See Guinn v. Legislature of Nev.
(Guinn II),
119 Nev. 460, 474-75,
76 P.3d 22, 32 (2003) ("Our State
Constitution's framers explicitly and extensively addressed education,
believing strongly that each child should have the opportunity to receive a
basic education." (footnote omitted)); Debates & Proceedings of the Nevada
State Constitutional Convention of 1864, at 567 (Andrew J. Marsh Off. Rep.,
1866) ("I really think there should be some provision by which the children
of the State, growing up to be men and women, should have the privilege
secured to them of attending school . . . . We have no right, and we cannot
afford to allow children to grow up in ignorance. The public is interested in
that matter, and it is one of too great importance to be neglected."
(statement of John A. Collins)). In fact, as the State concedes, our
Constitution provides Nevadans this right to a basic education. Guinn v.
Legislature of Nev. (Guinn I), 119 Nev. 277, 286,
71 P.3d 1269, 1275 (2003),
overruled on other grounds by Nevadans for Nev. v. Beers,
122 Nev. 930,
944,
142 P.3d 339, 348 (2006).
Moreover, Nevada citizens do not simply hold this right to a
basic education in the abstract; the right imposes "an affirmative
mandatory duty upon the legislature that is "judicially enforceable." Id.
(quoting Campbell Cty. Sch. Dist. v. State,
907 P.2d 1238, 1264 (Wyo. 1995)).
This court has long recognized that obligation. See Schwartz v. Lopez,
132
Nev. 732, 750,
382 P.3d 886, 898 (2016) ("The legislative duty to maintain a
uniform public school system is not a ceiling but a floor upon which the
legislature can build additional opportunities for school children."
(emphasis added and internal quotation marks omitted) (quoting Jackson
v. Benson, 578 N.W.2d 602, 628 (Wis. 1998))). Because this positive right
exists and imposes a judicially enforceable and mandatory affirmative
obligation on the Legislature, I cannot agree with the majority's conclusion
that the matter before us presents a nonjusticiable political question.
Therefore, I must dissent.
Consistent with the axiomatic principle that "[i] t is
emphatically the province and duty of the judicial department to say what
the law is," Marbury v. Madison, 5 U.S. 137, 177 (1803), "the Judiciary has
a responsibility to decide cases properly before it, even those it 'would gladly
avoid,"' N. Lake Tahoe Fire Prot. Dist. v. Washoe Cty. Bd. of Cty. Comm'rs,
129 Nev. 682, 687,
310 P.3d 583, 587 (2013) (quoting Zivotofsky v. Clinton,
566 U.S. 189, 194-95 (2012)). Because of this emphatic duty, courts have
been loath to dismiss active controversies, see, e.g., Cohens v. Virginia,
19
U.S. 264, 404 (1821) ("We have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not given.");
however, various courts have recognized a "narrow exception" for political
questions, see, e.g., Zivotofsky, 566 U.S. at 195 (explaining that federal
courts "lack [] the authority" to decide political questions); N. Lake Tahoe
2
Fire Prot. Dist., 129 Nev. at 687,
310 P.3d at 587. Under the politicalquestion doctrine, courts will not hear cases "where there is 'a textually
demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable
standards for resolving it.'" Nixon v. United States, 506 U.S. 224, 228 (1993)
(quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). As this doctrine "is one
of 'political questions, not one of 'political cases,' Baker, 369 U.S. at 217,
the political question must be inextricably linked to the at-issue controversy
to warrant dismissal, Majority Op. at 8, because otherwise, "there should
be no dismissal for non-justiciability on the ground of a political question's
presence," Baker, 369 U.S. at 217.
The majority's conclusion that "[Me plain language of the
education clauses does not create an obligation for the Legislature to
provide public education at a particular service level or to provide specific
educational outcomes," Majority Op. at 9, contradicts our precedent
regarding the right to a basic education, the Legislatures duty to fund that
right, and this court's duty to "read [the Nevada Constitution] as a whole,
so as to give effect to and harmonize each provision," see Nevadans for Nev.,
122 Nev. at 944,
142 P.3d at 348. As discussed above, the education clauses
create a constitutional right to a basic education,1 which the Framers placed
1At oral argument, the State conceded that the education clauses
provide a right to a basic education. While the State attempted to
distinguish a "basic" education from a "sufficiene education, it failed to
provide cogent arguments to support that distinction. Moreover, the
Framers' clear intent was to provide a sufficient education. See Debates and
Proceedings, supra, at 577 (explaining that the framers intended to confer
a duty upon the Legislature "to build the educational superstructure, by
means of which we can afford every child a sufficient amount of instruction
to enable it to go creditably through life- (emphasis added)).
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special importance on. Guinn I, 119 Nev. at 286-87, 71 P.3d at 1275-76.
However, the majority does not reconcile that right and the accompanying
duties it imposes on the Legislature with the Legislatures obligation to
"provide the money the Legislature deems to be sufficient . . . to fund the
operation of the public schools in the State." Nev. Const. art. 11, § 6(2).
Instead, it simply concludes that the broad discretion regarding education
policy and the commitment to fund education at a level the Legislature
deems sufficient renders this suit a nonjusticiable political question. But
that interpretation does not "give effect to and harmonize each [education]
provision." Majority Op. at 12. Rather, the majority's reasoning renders
the right to a basic education meaningless, as the Legislature can decline to
fund education at any meaningful level with no recourse for the public. See
Cruz-Guzman v. State,
916 N.W.2d 1, 9 (Minn. 2018) ("Deciding that
appellants claims are not justiciable would effectively hold that the
judiciary cannot rule on the Legislature's noncompliance with a
constitutional mandate, which would leave Education Clause claims
without a remedy. Such a result is incompatible with the principle that
where there is a right, there is a remedy."). Moreover, the majority's
reasoning also ignores our recognition that the Legislature must maintain
a "flooe in the education system, Schwartz, 132 Nev. at 750, 382 P.3d at
898, and renders such duty illusory, as the Legislature can refuse to fund
education at a basic threshold level with no remedy for those left without
the fundamental education needed to be successful adults, see Wyphoski v.
Sparks Nugget, Inc., 112 Nev. 413, 416,
915 P.2d 261, 263 (1996) (Steffen,
C.J., dissenting) (explaining "the fundamental principle of our civil justice
system that 'where there is a wrong, there is a remedy); Sparrow & Trench
4
v. Strong, 2 Nev. 362, 368 (1867) ("If we are to err, it is better to err on that
side where there is a remedy than where there is none.").
Instead, I would conclude that while this case undoubtedly
contains "political!' overtones, it is not a "political question." To harmonize
the education clauses—as well as our past precedents—I conclude that the
education clauses (1) establish a right to a basic education, (2) impose a duty
on the Legislature to reach this "floor" of a basic education while providing
the Legislature with broad authority to build upon the floor, and
(3) establish the Legislature's ability to provide whatever funding it deems
to be sufficient to fund public education, but which must at least be
adequate to provide a basic education. While we would not presume to
dictate what specific amount of money is necessary to provide a basic
education—indeed, the State has a multitude of options to address how to
provide a basic education beyond simply increasing funding—it is our duty
to determine whether the Legislature is complying with its constitutional
obligation to provide a basic education. See Marbury, 5 U.S. at 177; see also
Delawareans for Educ. Opportunity v. Carney, 199 A.3d 109, 175-76 (Del.
Ch. 2018) (recognizing that the Delaware Constitution granted "broad and
expansive authority" to the legislature over education, but holding that the
case was justiciable because "[a] direction to perform a task does not mean
that the party performing it judges its own performance," and concluding
that "[Me Education Clause obligates the General Assembly to create and
maintain a system of public schools" but "lilt does not say that the General
Assembly has the authority to determine for itself whether its actions meet
the constitutional requirement"); Neeley v. W. Orange-Cove Consol. Indep.
Sch. Dist., 176 S.W.3d 746, 778 (Tex. 2005) (explaining that the Texas
Constitution "assign[s] to the Legislature a duty [that] both empowers and
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obligates" and grants the legislature "the authority to determine the broad
range of policy issues involved in providing for public education[J
[b]ut . . . nowhere [does it] suggest[ ] that the Legislature is to be the final
authority on whether it has discharged its constitutional obligation"); Cruz-Guzman, 916 N.W.21 at 10 (holding that "there is no breach of the
separation of powers for the [judiciary] to determine the basic issue of
whether the Legislature is meeting the affirmative duty that the Minnesota
Constitution places on it").
Accordingly, I would hold that the determination regarding
whether the State is satisfying Nevadans right to a basic education is not
a political question, as an overwhelming majority of our sister states have.2
See, e.g., Gannon v. State, 319 P.3d 1196, 1230 (Kan. 2014) (recognizing that
"the majority of states" have "conclude [d] that the separation of powers does
not preclude the judiciary from determining whether the legislature has
2As the majority opinion does not address the lack of judicially
manageable standards, I note that all the jurisdictions that have found
similar cases to be justiciable have noted a plethora of standards that courts
may adopt. See, e.g., Delawareans for Educ. Opportunity, 199 A.3d at 177
(explaining that the court "should use in the first instance the standards for
school adequacy and grade-level proficiency that the political branches have
established"); William S. Koski, Educational Opportunity and
Accountability in an Era of Standards-Based School Reform, 12 Stan. L. &
Pay Rev. 301, 307 (2001) (explaining that when using standards developed
by the political branches, "concerns about judicial fact-finding, expertise,
and legitimacy are ameliorated").
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met its constitutional obligation to the people to provide for public
education'). I therefore dissent.
J.
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