Lawmakers ask appeals court to reverse tax-vote ruling

Wednesday, Oct. 29, 2003 | 11:23 a.m.

CARSON CITY -- A group of Republican state lawmakers say there is a "reasonable likelihood" that the Legislature in the future will pass new or increased taxes without the constitutional required two-thirds vote.

The legislators made the claim in their opening brief in the 9th U.S. Circuit Court of Appeals Tuesday, saying the case against an 11th-hour state Supreme Court decision allowing less than a two-thirds vote should still be alive even though the 2003 Legislature passed the $836 million tax increase by a two-thirds vote in the Assembly and Senate.

The petition asks the appeals court to send the case back to the U.S. District Court in Las Vegas for consideration on its merits. The suit was dismissed in federal court on grounds of a lack of jurisdiction.

The Nevada Supreme Court ruled 6-1 that higher taxes could be passed without a two-thirds majority if it was necessary to fund public education. The Assembly then approved a tax plan 26-14, two votes shy of the required two-thirds. But Assembly Speaker Richard Perkins, D-Henderson, declared the measure passed, based on the Supreme Court opinion.

Later the Assembly and Senate passed another tax plan each by two-thirds votes.

The brief by the Republicans says, "This case presents an important question of constitutional law, and the writ of mandamus issued by the Nevada Supreme Court on July 10 remains on the books as ostensible authority for the Legislature to violate the Nevada Constitution again in the future and thereby violate plaintiffs' federal constitutional rights."

It said the subsequent passage by two-thirds did not make the case moot.

Voters approved a constitutional amendment in 1996 to require a two-thirds vote for new or increased taxes. The petition said the Assembly's 26-16 vote "violated the express and unambiguous two-third vote requirement of the constitution."

Others on the appeal besides the 15 GOP Assemblymen and nine senators were the Nevada Manufacturers Association, the Nevada Retail Association, Nevadans for Tax Restraint, Nevada Concerned Citizens and a handful of individuals.

The brief was filed by attorneys Hugh Hewitt and Steven Imhoff of Irvine, Calif., and John Eastman, head of the Chapman University School of Law in California.