Court holds fate of power industry

Friday, July 6, 2001 | 10:55 a.m.

CARSON CITY -- Money and power are the issues in two cases set for argument today before the Nevada Supreme Court.

One case would allow major casinos and mining operations to leave the electric system to seek cheaper rates.

The second would allow county officials to raise fees for a variety of services including marriage licenses and eviction notices.

"There will be some spirited discussion," said Reno attorney and lobbyist Harvey Whittemore, who represents gaming and mining interests.

Whittemore will be joined in his presentation by attorney E. Leif Reid, son of Sen. Harry Reid, D-Nev.

They are arguing that Assembly Bill 661 was passed by the regular session of the Legislature. They say that the chief attorney for the Legislature, Brenda Erdoes, however, improperly prevented the measure from being sent to Gov. Kenny Guinn for his signature.

If the Supreme Court rules that the bill was indeed properly approved, it would change the face of Nevada's electric industry. Big users in the gambling and mining businesses would be permitted next year to seek approval from the state Public Utilities Commission to seek cheaper sources of power outside of Nevada Power Co. and Sierra Pacific Power Co.

In the second case, Andrew List, a nephew of former Gov. Bob List, will represent county officials who want to increase fees and use the money for victims of domestic violence, for helping foster children as they leave the system and to pay for new technology for the offices of county recorders.

The court is expected to rule in both cases at a later date.

In the power case, the justices are being asked to decide what the voters meant in 1998 when they supported a constitutional amendment to limit the regular session to 120 days. They are being asked if the Legislature was legally able to fudge an extra hour into the session.

AB661, the energy bill, and Assembly Bill 94, the county fee measure, were approved by the lawmakers after the 12 a.m. deadline on June 5. So were more than 20 other bills.

The state Constitution says the Legislature must end at midnight Pacific Standard Time on the 120th day. With confusion reigning and many major bills still in limbo, Erdoes was asked for a legal opinion about whether the Legislature had an extra one hour because it was operating on Pacific Daylight Time, rather than the standard time set forth in the Constitution.

Erdoes and her legal staff said it initially appeared the lawmakers had an extra hour, and this was used to cram through a variety of bills. But upon further research, Erdoes refused to allow the bills to be processed and sent to Gov. Kenny Guinn for his signature.

There was a constitutional question over whether these bills were legally approved because they were processed passed the midnight deadline, she said.

Guinn then included all the bills in a special session so they could be passed without a legal cloud. But the energy bill and the county fee legislation needed a two-thirds vote. Republican Assemblymen, angry over a legislative reapportionment plan, balked at approving the two bills and they died in the special session.

In pre-hearing briefs filed with the court, List suggests that the Legislature has 121 days to complete its business, rather than 120 days. List says the 120-day timetable begins on the day after the session opens.

The regular session opens at noon. He said the Supreme Court should exclude the first partial day from the 120-day calculation. He says the Alaska Supreme Court ruled that way in a similar case in that state.

If the justices adopt the List argument, then the Legislature reached final adjournment 23 hours early, he said.

Whittemore and Reid say the failure of Erdoes to allow the bills to be processed was "an unconstitutional usurpation of executive and judicial power by a legislative employee." There is no law that authorizes the legislative counsel to first decide the constitutionality of a bill before sending it to the governor, they said.

Erdoes and Senior Deputy Legislative Counsel Kevin Powers argue that each regular Legislature must be limited to 120 calendar days, including the day on which the session starts."

They said it was "highly improbable" that any person who voted for the 120-day limit in 1998 believed the constitutional amendment to mean 121 days.