Single-subject limitation in Nevada’s initiative process being reviewed

CARSON CITY — Many Nevada groups have long contended that a law approved by the 2005 Legislature requiring citizen-backed initiative petitions to confine themselves to a single subject has thwarted public access to the ballot.

A coalition of groups is now challenging the single-subject limitation and is about to have its day in court.

Briefing on the complaint brought by Las Vegas attorney Kermitt Waters on behalf of Citizen Outreach and two other groups is expected to be completed in early September.

The Nevada Supreme Court will then likely hear oral arguments about whether the requirement has, as Waters contends, prevented most groups from getting their measures on the ballot for consideration by voters.

“Between 1915 and 2005, the state of Nevada had no single-subject restriction on initiatives and the state did not descend into chaos,” Waters wrote in his opening brief. “If Nevada is ever to have a diverse economy, free of the stranglehold of a favored few industries, it can only be done by a direct democracy.”

TAX MEASURE AWAITS COURT OK

The groups challenging the single-subject rule also plan to circulate a petition to establish a two-pronged tax measure in Nevada to raise the mining tax and impose a broad-based gross receipts tax.

Signature gathering to qualify a measure for the 2014 ballot can begin Sept. 1, but Waters said he won’t start until his proposal gets an OK from the state Supreme Court.

If the court does not invalidate the single-subject rule, Waters has asked the court to at least review and validate the wording of the tax proposal so the signature gathering effort can begin without fear of legal challenges from opponents. Waters said such challenges are used as delaying tactics to reduce the amount of time available to collect the necessary signatures.

The groups represented by Waters lost their case at the District Court level and have appealed.

A number of groups, including the Nevada Resort Association and the Nevada Mining Association, have filed responses that argue Waters’ claims are without merit.

The single-subject rule was contained in Senate Bill 224 from the 2005 session. It says that an initiative petition must embrace “but one subject and matters necessarily connected therewith and pertaining thereto.”

But the statute has been interpreted so narrowly in court decisions that it is nearly impossible to get a measure past the many legal challenges, Waters said.

“Throughout its existence, SB224 has prevented nearly every initiative petition from being presented to the people,” he said.

TEACHERS TAX SURVIVED CHALLENGE

The proposed margins tax set for a vote next year and placed on the ballot by the Nevada State Education Association is the first to qualify since 2006. It too had to survive a legal challenge based in part on the single-subject rule.

Waters knows the single-subject rule well. He helped push an eminent domain reform petition onto the ballot in 2006, which was ultimately approved by voters. But it was challenged un­successfully by opponents who alleged it violated the single-subject rule. It took effect after being approved by voters a second time in 2008.

The groups represented by Waters also have challenged Assembly Bill 81 from the 2011 session that requires signatures to be gathered in each of the state’s four congressional districts.

In an ironic twist, Waters argues that both bills address multiple subjects and thus violate the single-subject requirement currently in the state constitution and so should be tossed out.

The single-subject requirement for citizen initiative petitions contained in SB224 is different from the constitutional requirement for bills enacted by the Legislature, and has placed un­reasonable restrictions on citizen initiatives that are not in the constitution, Waters said.

The state constitutional requirement for the Legislature to draft bills dealing with a single subject states: “Each law enacted by the Legislature shall embrace but one subject, and matter, properly connected therewith, which subject shall be briefly expressed in the title.”

‘frustrated’ with process

Attorney Matt Griffin, representing the Nevada Resort Association, has argued that the two bills do not violate the Nevada constitution’s single-subject requirement.

He also argued that the two different requirements for single subjects for laws passed by the Legislature and those sought through the initiative process are appropriate.

“Measures of popular passion or self-interest, the two dangers which were meant to be controlled by the deliberative process of representative government, must be rigorously restrained in the process of direct democracy,” he said.

But if the court wants to harmonize the two rules, throwing out AB81 and SB224 is not the proper response, Griffin said.

“Appellants are frustrated with the initiative petition process and have brought this action hoping that the court will unravel the policy decisions made by the Nevada Legislature,” he said.

Attorney Bradley Schrager, representing the Nevada Mining Association and several other organizations, said in his response that it is too late for Waters to challenge the 2005 law because of a statute of limitations.

There also is no reason for the court to reconsider its previous rulings upholding the single-subject rule, Schrager said.

Waters said a ruling in his favor will give Nevadans a chance to break the stranglehold gaming and mining now have on the Nevada Legislature.

“Anyone who thinks the Legislature is working for the people of Nevada is living in Technicolor,” Waters said. “This is the chance to break the oligarchy.”

Contact Capital Bureau reporter Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Follow him on Twitter @seanw801.

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