Legal Challenge To Tax Debate Shifts

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Legal challenges to stop Nevada lawmakers from trying to pass a tax increase without a two-thirds legislative vote have shifted to putting the lid on a state Supreme Court ruling that would have made it possible.

Hours after an $836 million tax plan passed the Legislature by a two-thirds vote, a Las Vegas lawyer asked the Nevada Supreme Court to withdraw its decision that education funding takes precedence over a two-thirds majority requirement made part of the state constitution in 1996.

Daniel Polsenberg, the lawyer representing 24 Republican legislators, filed a brief saying the "perceived" crisis has passed, and asking the court to void its opinion.

Attorneys for Gov. Kenny Guinn and the Nevada Legislature have until Friday to file responses.

"This court's July 10 opinion is a dangerous constitutional precedent," Polsenberg said. "(It) gives the impression to many that the two-thirds requirement has been removed from the constitution, despite the vote of the people."

Judge William Dressel, president of the National Judicial College in Reno, said there are still legal issues to be settled, even though a tax plan passed.

"Their argument is going to be that these cases are not moot because they want to stop the effect that this could have in future legislative sessions," Dressel said.

A "constitutional infirmity" remains, Dressel said, but no urgency because a tax plan passed.

"There is no question that if the Supreme Court ruling stands, it will be a backdrop for future legislation," said Joan Howarth, a University of Nevada, Las Vegas, law professor and constitutional law expert. "The terms of the decision may have been limited to the special session, but the analysis of that decision is still going to carry weight."

Assembly Minority Speaker Lynn Hettrick said after the tax plan passed late Monday that he would continue to pursue lawsuits challenging the state Supreme Court's July 10 ruling. Hettrick was among the 24 Republicans who asked a panel of U.S. District Court judges to overrule the decision.

The federal judges declined, saying state courts should decide state constitutional issues.

The federal judges' decision is being appealed to the 9th U.S. Circuit Court of Appeals, and is scheduled to be heard this fall.

U.S. District Judge Kent Dawson on Tuesday denied a challenge filed by the Independent American Party and other state political and activist groups to stop Guinn and the Legislature from passing any tax increase without a two-thirds majority.

The IAP was joined in the suit by the Nevada Republican Liberty Caucus, the Nevada Committee for Full Statehood, Eagle Forum, the Nevada Committee for Immigration Reform and individuals.

A ruling by U.S. District Court Judge Roger Hunt is pending in another lawsuit challenging the state high court decision as an unconstitutional raid on legislative power.

That suit was brought by the Nevada Environmental Coalition, said Robert Hall, the group president.