Lawyer attacks petition limit

CARSON CITY -- A lawyer who has been frustrated in his attempts to increase gaming taxes has filed a lawsuit in federal court in Reno that could lead to a judge throwing out the state law that has hindered his efforts.

Clark County lawyer Kermitt Waters said Wednesday he filed legal documents on behalf of the International Union of Gaming Employees, charging that the law that limits initiative petitions to a single subject violates the U.S. Constitution.

"We are going to bust them this way," said Waters whose two petitions to triple the state's 6.75 percent gaming tax were thrown out in state court in Carson City. "In 60 days to 90 days, this single-subject law is going to be history."

The gaming association, formerly the Nevada Casino Dealers Association, filed an initiative petition in January to stop Wynn Las Vegas and other employers from requiring tip-earning employees to share tips with other employees specified by management.

The dealers tried unsuccessfully during the 2007 Legislature to enact a law to block Wynn Las Vegas from requiring them to share tips with pit bosses and other management employees.

Under their petition, tip earners themselves would decide which other employees, if any, should share their tips.

The lawsuit filed by Wynn Las Vegas, the Nevada Restaurant Association, the Retail Association of Nevada and other organizations charged that the dealers' petition violated their federal constitutional rights and the state's single-subject law.

But Waters has maintained the single-subject law is patently unconstitutional since even the First Amendment contains multiple subjects: freedom of speech, religion, press, and the right to assemble peacefully and petition government to redress grievances.

His tax petitions were thrown out because they not only would have increased the gaming tax, but also specified how the additional tax revenue would be spent. A similar petition filed by the Nevada State Education Association was thrown out for the same reason.

Because the plaintiffs charged the dealers' petition violated their constitutional rights, Waters said he had the case moved from state court to federal court.

Jason Woodbury, a Carson City lawyer who represents Wynn Las Vegas, said Wednesday it is "pretty obvious" Waters' motives have little to do with the tip-sharing petition, but with his tax proposals.

He added the dealers' petition not only affects casinos, but would change the long-standing tradition of restaurant employers setting up tip-sharing pools so that all service employees could receive some tips.

Under the petition, he said there would be no reason for food servers to share tips with bus boys and other restaurant workers.

But Al Maurice, director of the International Union of Gaming Employees, said that never has been their intention.

"If you (tip earners) want to cut in bus boys or anyone else, that is fine," Maurice said.

What the dealers oppose is Wynn or other employers dictating to the tip earners who should share in the tip pools.

He noted that among gaming companies only Wynn Las Vegas joined in the lawsuit. That is, he said, because virtually every other casino in the state did not allow pit bosses to share in tips earned by dealers.

While the one-subject law was raised in their lawsuit, Woodbury said: "That really isn't our fight."

But it is Waters' concern. After his petitions to increase the gaming tax were rejected by District Judge Bill Maddox, he filed an initiative petition to throw out the single-subject law.

He said Wednesday he may pull that petition since he is confident the federal court will find the single-subject law is unconstitutional.

While throwing out the single-subject law would benefit him, Waters added it also would help everyone else who circulates petitions.

The dealers have until Nov. 11 to collect 58,836 signatures on their petition to change the state law on tip sharing.

If they are successful, the 2009 Legislature would have to consider their proposal. If legislators refuse to act on the dealers' plan, the issue would go before voters in the 2010 general election.

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or (775) 687-3901.