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July 24, 2014

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Nude dance clubs, NV Energy’s taxes and school uniforms lead off state Supreme Court cases for 2014

The Nevada Supreme Court will open 2014 with appeals from Las Vegas erotic dancing clubs, a killer on death row and a dispute over school uniforms.

The court will conduct hearings in Carson City from Jan. 6-8 on 13 cases involving a variety of issues.

Eight clubs that feature topless or nude dancing are protesting a state-imposed 10 percent entertainment tax. The performances by the dancers "constitute free speech and expression," and cannot be taxed, according to the brief filed with the court.

The clubs cite decisions from other courts that nude dancing is protected by the First Amendment. They want a refund on the taxes they have paid to the state. The amount is not disclosed.

The clubs have carried their case to the federal court in Las Vegas, the U.S. Ninth Circuit Court of Appeals and the state district court in Clark County without success.

The 10 percent tax is on admissions and on the food and drinks that are sold. It was first imposed on casinos and then was expanded to include other businesses.

The clubs say they have paid the tax "under the threat of criminal prosecution and imposition of fines" and now want a refund.

The state Taxation Department says the entertainment tax is not levied on First Amendment-protected activity. The tax is imposed on the customers and is "an excise tax on business transactions which occur on the state."

The department in its brief filed with the court said the businesses have been "unable to demonstrate that they have suffered irreparable harm."

The tax applies to facilities where live entertainment is performed, not just these clubs, the department said.

The eight clubs have a second appeal before the court but that is based on legal technicalities, not on the constitutionality of the tax, which is what will be heard by the court Wednesday.

Another tax case will be argued before the court in which NV Energy seeks a refund on the use tax it paid on coal shipped into the state from Utah, Wyoming and Colorado.

The coal was burned to supply power at the Reid Gardner plant in Clark County and the Valmy Power Plant in Humboldt County. The Valmy plant is 50 percent owned by NV Energy and Idaho Power.

The company is seeking $25.9 million in refunds.

The utility maintains the use tax violates the federal law on interstate commerce. The state says the company is not subject to the net proceeds of mine tax and suffered no discrimination in the imposition of the levy. That argument is set for Tuesday.

The court opens hearings Monday with an appeal by death row inmate Timothy "Stone" Burnside, convicted of the robbery and fatal shooting of Kenneth Hardwick in Henderson in December 2006.

Attorneys for Burnside argue there were a number of errors at the trial, that the death penalty is excessive and his trial should have been separated from his partner, Derrick "Suave" McKnight, who was sentenced to life in prison without the possibly of parole.

The district attorney's office maintains Burnside received a fair trial and sentence.

Hardwick was a former professional basketball player who once played with the Detroit Pistons. He was shot at a drive-in as part of a robbery.

Also on Monday is the appeal of Mary and Jon Frudden, whose children attend Roy Gomm Elementary School in Washoe County, where a parent-faculty association adopted a uniform policy.

The Fruddens claim the association violated the open meeting law and never gave them a chance to protest the uniform regulation. School officials say the association is not a public body and is not subject to the open meeting law. It says the majority of parents of students support the uniform standards.

The Washoe County School has a general policy on student clothing. But the Gomm school went a step further, requiring shirts or polo shirts to be red or navy blue with the Roy Gomm insignia on the front. Pants or skirts should be khaki or tan.

The court will hear the arguments on these cases next week and issue its rulings later.

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