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The brutal law of unintended consequences
by Andrew Barbano
Feb 27, 2013 | 2232 views | 0 0 comments | 2 2 recommendations | email to a friend | print
The Nevada teachers' business tax petition is poised to perpetrate the damndest legal scramble the state has ever seen. The legislature has until March 15 to pass the measure verbatim or it advances to the November 2014 ballot.

For more than 100 years, petitions have been deemed passed if they win a simple majority of those voting on the issue.

In 1980, Sen. Joe Neal, D-N. Las Vegas, ordered the Legislative Counsel Bureau to research a constitutional anomaly. The result was astounding.

Neal, who taught constitutional law at Community College of Southern Nevada, caught a language quirk that also affected three other states, all of which fixed it before it became a problem. Nevada didn't.

The crux is that Nevada's Constitution mandates that in order to win approval, ballot questions must gain a majority of all the voters voting in an election, not just between those casting votes on individual issues.

A successful action can be brought before the Nevada Supreme Court upholding Sen. Neal's very well-grounded scholarship. If the court rules in favor, Nevada's union-busting Right-to-Work-for-Less (1952) and term limits (1996-98) laws become constitutionally invalid. So do more than 100 others.

The research will be linked to the web edition of this column at NevadaLabor.com.

It includes letters from Legislative Counsel Bureau Research Director Andrew Grose with case citations and examples of petitions invalidated by these criteria.

You may also read the 1980 letters from Nevada Secretary of State Bill Swackhamer and Legislative Counsel Frank Daykin. Ole Swack's non-response conveyed Atty. Gen. Richard Bryan's non-response. Bottom line: Too hot to handle. Don't bother us. Please go away.

Alas and alack, the Las Vegas MGM Grand caught fire in 1980 and Sen. Neal got sidetracked getting the 1981 high-rise sprinkler law passed over the objections of the gambling industry.

The petition issue languished until he found this research a few weeks ago and sent an inch-thick file to me.

  He included a transcript from Nevada's 1864 Second Constitutional Convention in which the framers state their intent that initiatives should pass only by winning a majority of all voters voting in an election. Read it yourself.

On 8 March 1939, Nevada Attorney General Gray Mashburn sent a letter to Secretary of State Malcolm McEachin that the issue should be taken to the Supreme Court. We're still waiting for action on Mashburn's legal opinion.

The teachers petition will probably win but only narrowly.

Should it do so, tax-avoiding corporations will have only one recourse: take it to court to blow it out under Neal's criteria. If the Supremes uphold the current system, Nevada schools get an extra $800 million a year. If the blackrobes opt for the status quo, more than 100 Nevada laws are invalidated.

Either way, average citizens greatly benefit. A positive Catch22.

Joe Neal would not have it any other way.

Be well. Raise hell.

Andrew Barbano is a 44-year Nevadan and editor of NevadaLabor.com and JoeNeal.org/ E-mail Barbwire by Barbano has originated in the Tribune since 1988.
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