Judges should leave flawed arena petition off November ballot

Imagine District Judge James T. Russell's surprise back in January 2011 when he was approached outside the Carson City courthouse by a circulator seeking to add his name to an initiative petition.

"When I asked what it was for, it was represented to me to be for an arena to be built in Las Vegas, and that if I didn't want my taxes in Northern Nevada to be increased, I should sign the petition," the judge assigned to the petition controversy recalled in a letter to the litigating attorneys. "I was surprised by this response. I did not sign the petition.

"Based on this information obtained outside of this litigation, I have a concern about hearing this matter. Although, I believe I can be impartial and fair, I have direct information as to an issue before the Court."

Although his experience constituted a single anecdote, the judge did the ethical thing and offered to disqualify himself from a legal matter that hinged on whether those gathering petition signatures had deceived the public to further their end goal of getting a sports arena proposal on the November 2012 ballot.

Attorneys didn't take him up on his offer.

The idea that Northern Nevadans might somehow be on the hook for a Strip sports arena if the petition wasn't signed was hot air. While it didn't prove that petition troops representing the Arena Initiative Committee would say anything to collect the necessary signatures for the Caesars Entertainment-backed proposal before the public, it didn't exactly help their cause.

It was only one story, but for me the judge's experience symbolizes some of what's questionable about the arena proposal and the special-interest tax that would be used to pay for it if approved by voters.

The state Supreme Court will soon help determine whether the initiative proposal can remain on the November ballot. The high court already has decided some of the language in the petition's Description of Effect is deceptive and materially misleading.

The question is whether the deception is so great that it should invalidate the more than 150,000 signatures that have been collected and, in doing so, void the petition and push the issue off to the 2014 ballot.

In making its finding, the full court on June 19 noted that the descriptive language failed to mention that approving the measure would stifle competing arena proposals. (Las Vegas has more promoters of sports arenas than it has lounge comics. And the arena pitchers often generate more laughs.) The high court remanded the matter to the District Court to clarify the Descriptive Effect.

Arena attorneys, meanwhile, have argued that the court didn't take into account other factors that prove the proposal doesn't prevent competition.

Petition drives are never perfect - nor do they need to be. Whether it's blurry signatures, unqualified gatherers, missed deadlines, misinterpretations of Nevada law or muddy descriptive language, there are always areas of concern. And over the years I've watched a lot of well-meaning amateurs spend hundreds of hours collecting signatures only to see their best efforts go down the drain on a technicality.

But the arena proposal isn't being forwarded by fuzzy-headed demagogues or hardworking true believers. It's associated with one of the biggest casino corporations in the world. Likewise, its opponents aren't a Neighborhood Watch group, but reflective of its Strip competition.

Whether it's before the state Supreme Court or District Judge Russell, someone in a black robe should do us all a favor and put this flawed arena plan out of its misery. Beyond being materially misleading, creating a 0.9 percent sales and use tax inside a special Gaming Enterprise District smacks of a cockeyed tax policy that benefits a special business interest.

While that might not make it unprecedented in Nevada, where the politically connected have rarely been forced to play by the established rules, it doesn't make it right. If it were to pass in November, even a two-bit mentalist could predict attorneys would have a field day shooting holes in it at the next level.

Maybe the interested parties should have taken Judge Russell's experience as a sign.

John L. Smith's column appears Sunday, Tuesday, Wednesday and Friday. Email him at Smith@reviewjournal.com or call 702-383-0295. He also blogs at lvrj.com/blogs/Smith