Challenge to tax initiative argued

VIRGINIA CITY -- Petitions seeking a constitutional amendment to cap property taxes might have contained some minor procedural errors but substantially complied with state requirements, a judge was told Monday.

Joel Hansen, a Las Vegas attorney representing Sharron Angle and other supporters of the California-style Proposition 13 property tax cap, said circulators attempted to follow the requirements for initiative petitions, including submitting affidavits intended to protect against fraud.

The standard for petitioners is that they "substantially complied" with the requirements, which they did, he said.

But attorneys for the Nevada State Education Association argued the affidavits were not complete, disqualifying several thousand signatures in Clark County and making the measure ineligible for the November ballot.

The dispute is being heard by senior Judge Charles McGee, who is expected to rule from the bench at the conclusion of what is expected to be a two-day hearing. Regardless of his decision, the dispute probably will end up before the Nevada Supreme Court for a final ruling.

The hearing was in the historic Storey County courthouse because of space limitations in Carson City. McGee, a retired Washoe County judge, is hearing the case after both Carson district judges were challenged by the parties.

Regardless of how the courts ultimately rule, the tax cap measure will be on the ballot in November. There won't be time for a final decision before ballots are printed, said Matt Griffin, deputy secretary of state for elections.

The measure will be Question 5 on the ballot. If the measure is disqualified, the votes probably will remain uncounted, he said.

Hansen said there is neither evidence nor any suggestion that fraud took place in the collection of the signatures.

Secretary of State Ross Miller certified the measure for the November ballot after the clerks of the state's 17 counties determined there were enough valid signatures. Angle needed 58,628 signatures; Miller found that 64,166 signatures qualified.

But the measure also had to qualify in all 17 counties, and the petition narrowly survived a random review of 5 percent of the signatures in Clark County. She needed 40,364 signatures in Clark County. The 5 percent review showed she had 40,571 valid signatures, just 207 more than required.

But teachers union attorney Mike Dyer told McGee there are problems with many of the signature pages.

Some pages submitted in Clark County did not include the required affidavits with them, and signatures were not always tallied on the affidavits. Petition circulators are to sign affidavits that they personally circulated petitions and counted the signatures on their petitions, among other things.

Rejecting the pages in question would invalidate 7,894 signatures, resulting in the failure of the measure to qualify both in Clark County and statewide, he said.

Hansen said circulators attempted to follow the affidavit requirements, but the law is unclear. The decision was made to submit one affidavit with each bundled number of signature pages, which satisfied the requirement to substantially comply with the rules, he said.

At one point McGee asked whether the petitioners were "sloppy" by not providing an affidavit for each page of signatures.

"It wasn't because they were trying to be sloppy," Hansen said. "They thought this was the right way to do it."

The Nevada Supreme Court last week rejected three other initiative petitions, finding the circulators did not follow the affidavit requirements. But in those petitions, the record was clear that circulators did not follow requirements because they were unaware of them.

In the Angle petition case, circulators were aware of the requirements and attempted to comply with them, Hansen said.

Miller rejected the affidavit challenge by the teachers union when he certified the measure for the ballot. The teachers union then took the matter to court.

Angle's proposed constitutional amendment would limit property tax increases to 2 percent per year for all property until a property is sold.

The current cap, set by the Legislature in 2005, is 3 percent per year for owner-occupied homes and 8 percent for other property, including commercial.

Angle has tried for years to get a property tax limit into the Nevada Constitution. She has argued the cap needs constitutional protection because the Legislature could revoke its cap anytime it wished.

Clark County Registrar of Voters Larry Lomax was subpoenaed to the hearing and testified that the tax petitions were delivered in a variety of formats, with some held together with paper clips and others with rubber bands.

The fact that affidavits did not accompany every signature page did not factor into the check of signatures but was brought to the attention of the secretary of state's office, he said.

Evidence also was presented that the petitions initially turned in to Clark County contained numerous photocopies, many of which were removed by the submitter after being told they could not be accepted for purposes of meeting the signature count.

Lomax said in an interview his primary concern with the ballot dispute is how it might affect the printing of ballots for the November general election. Printing should begin this week, he said.

Ballots are supposed to be mailed Sept. 24 to get to overseas locations, Lomax said.

If the property tax cap measure does qualify, it would be the only citizen-backed initiative petition to make it to the ballot this year. Others have been abandoned by the sponsors or rejected by the courts.

If approved by voters this year, the property tax measure would have to be approved a second time, in 2010, before it could take effect.

Angle, a former state Assemblywoman from Reno, has called the legal challenge by teachers a stalling tactic.

If implemented, Angle's measure could affect education funding, including raises for teachers.