Tax cap found invalid for ballot

VIRGINIA CITY -- An initiative petition seeking to implement a California-style property tax cap in Nevada was found invalid for the November ballot Tuesday by a judge.

Senior Judge Charles McGee ruled from the bench after a two-day hearing, saying some of the affidavits required with the petition signatures were flawed and therefore invalidated the Nevada version of a Proposition 13 tax cap pushed by former state lawmaker Sharron Angle.

McGee said there were "exponentially more petitions" containing deficiencies than necessary to disqualify the measure from the ballot.

McGee said there was no evidence of fraud, and specifically noted that the petition backers made every effort to comply with the petition requirements.

He also suggested that a clear set of rules on how to follow the initiative process would be helpful for citizens and might be at least one positive result from all the effort expended by Angle and her volunteers.

The ruling, a victory for the Nevada State Education Association, will be appealed to the Nevada Supreme Court for a final decision.

Las Vegas attorney Joel Hansen, representing Angle, said he will also immediately seek a stay from the Supreme Court to keep the measure on the ballot until the high court rules in the matter.

If the question is removed from the ballot and Angle wins on appeal, there will be no remedy, he said.

Angle, who attended the hearing in the Storey County Courthouse and who testified Tuesday, said she was disappointed because McGee appeared in his ruling to require a higher standard of compliance in meeting the affidavit requirements than what was set by the Nevada Supreme Court in a different petition case just last week.

"We felt we met the threshold of substantial compliance," she said. "When we go to the (Supreme) court it will be a new day."

Teachers association President Lynn Warne said she was happy with the decision.

"The judge's ruling best serves the voters and preserves the intent of the law," she said. "The initiative process is designed to express the will of the people, but the efforts must follow the rule of law and this group did not. Illegal steps were taken in gathering tens of thousands of signatures to qualify this initiative; therefore it was imperative we challenge the effort."

In arguing for the petition to be upheld, Hansen said 95 percent of the signatures turned in to qualify the measure for the ballot were not contested.

"Ninety-five percent is substantial compliance," he said. "That's an A."

Hansen said the rules were not clear on how to submit the affidavits, and he blamed the secretary of state's office for failing to offer clear guidance on the matter.

But attorneys for the Nevada State Education Association, which challenged the decision by Secretary of State Ross Miller last month to certify the measure for the ballot, argued that nearly 12,000 of the signatures had to be found invalid because of the affidavit issues.

By finding that the signatures were invalid, the measure falls short of qualifying for the ballot both in Clark County and the state as a whole, said Carson City attorney Mike Dyer.

The hearing focused only on the affidavits turned in with petitions in Clark County.

Miller OK'd the measure for the November ballot after the clerks of the state's 17 counties checked the signatures and determined there were enough valid names. Angle needed 58,628 signatures. Miller found that 64,166 qualified statewide.

But Angle also had to qualify the measure 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 review showed she had 40,571 valid signatures, just 207 more than required.

The affidavit issues raised by the teachers were rejected by Miller.

It is expected to be on the ballot as Question 5 whether it is ultimately found valid or not because ballots are being printed this week.

If ruled ineligible by the Supreme Court, the votes on the measure will not be counted.

Dyer said the issue is not the number of signatures turned in, but the affidavits required by the Legislature to accompany the signatures as a way to head off potential fraud.

"Did you substantially comply," he asked in closing arguments. "Just trying isn't enough."

Dyer spent much of the day highlighting various issues with dozens of pages of signatures turned in Clark County, saying the mandated affidavits were incomplete and thus should invalidate the signatures.

Problems cited included the failure to list the number of signatures for which a circulator was attesting to, and affidavits that appeared to cover multiple signature pages gathered by different individuals.

The affidavits require signature gathers to attest to the fact that they witnessed the signatures personally and that signers were given the chance to read the measure, among other provisions.

The requirements are not difficult to follow, Dyer said.

Hansen argued that any mistakes were minor and the petitioners substantially complied with the affidavit requirements, which is the standard set by the Nevada Supreme Court for initiative petitions in a decision issued last week on a different petition challenge.

Angle's proposed constitutional amendment would limit property tax increases to 2 percent per year for all property. The Legislature enacted its own caps in 2005, limiting increases on owner-occupied homes to 3 percent and other property to 8 percent.

If approved by voters this year and in 2010, the cap would take precedence over the legislative cap.

The hearing was held in the Storey County courthouse because a courtroom was not available in the capital.

Contact Review-Journal Capital Bureau reporter Sean Whaley at swhaley@reviewjournal.com or 775 687-3900.