Legal showdown brewing over ballot tax measures

CARSON CITY, Nev. (AP) -- A legal showdown is brewing between Nevada's executive and legislative branches over whether state lawmakers can propose an alternative tax plan to compete with a business margins tax on the 2014 ballot.

An opinion late Tuesday by the secretary of state's election deputy, sought at the request of Gov. Brian Sandoval's legal counsel, would seemingly stop attempts by a group of Senate Republicans to propose higher mining taxes as an alternative to the teachers' tax plan that would impose a 2 percent tax on businesses grossing more than $1 million a year.

But lawyers for the Legislature disagree. On Wednesday, Sen. Michael Roberson, R-Henderson, released a new opinion from legislative counsel taking exception to the executive branch's position.

At issue is whether the Legislature "rejected" the margins tax initiative backed by the teachers union. The Nevada State Education Association collected more than 150,000 signatures last year to get their proposal to the 2013 Legislature. Under state law, legislators had until the 40th day of the session — March 15 — to approve it, or to reject it and automatically send it to voters next year.

But lawmakers did neither. Only one hearing was held, and the initiative never made it out of the Assembly Tax Committee.

So the question becomes, does doing nothing constitute "rejection," thereby giving lawmakers authority to propose an alternative ballot question? The secretary of state, attorney general and governor's staff say no.

In a letter dated April 2, Scott Gilles, deputy secretary for elections, told the governor's staff that his office concurs with their interpretation of the Constitution "that the Legislature has not satisfied its requirements to reject the measure qualifying it to place an alternative measures on the 2014 General Election ballot."

In response, Kevin Powers, chief litigation lawyer for the Legislative Counsel Bureau, said the opinion of the secretary of state and attorney general's office are just that — opinions with no legal authority.

Powers said that except in very limited situations, "an officer of the executive branch of government has no right or power to declare an act of the Legislature to be unconstitutional or to raise the question of its constitutionality without showing that he or she will be immured in person, property, or rights by its enforcement."

He concluded that if the Legislature proposes and passes an alternative ballot measure, "all state executive branch officers must presume that the competing measure is constitutional, they must treat is as a valid legislative measure, and they must perform their constitutional and statutory duties based on that presumption unless and until the judicial branch declares otherwise."

In a statement late Tuesday, Roberson and five other Senate Republicans who support pursuing higher mining levies as a better option that the teachers' business tax proposal said they'll continue to work with Democrats to forge a valid ballot option.

"Despite what we view as incomplete, unsupported and unpersuasive opinions expressed by those outside the legislative branch of government, the Legislature has the authority to approve, by statute, an alternative measure that competes with the fatally flawed margins tax, with the measure receiving the most votes becoming law if passed by a majority of voters," the statement said.

"We believe that voters should be given the opportunity to pursue that course."