Language debate won’t stop Legislature’s tax alternative

Good news: It turns out the Legislature can still pass a mining tax!

The authority of lawmakers to propose an alternative to the Nevada State Education Association’s 2 percent business margins tax was called into question recently. Attorney Sean McDonald, writing on his new legal blog, Amicus Nevada, noted a peculiarity in the language of the Nevada Constitution.

When the people propose an amendment to the constitution or laws of the state, three things can happen. One, the Legislature can adopt it (if lawmakers act within the first 40 days of the session); two, it can reject it, which means it goes before the voters at the next general election.

But there’s a third option: The Legislature can reject the initiative, but place an alternative measure “on the same subject” before voters. Assuming both the initiative and the legislative alternative get a majority of votes, whichever issue gets the most votes wins.

So what’s the problem? McDonald noticed that in the first instance, the constitution says “if the statute or amendment to a statute is rejected by the Legislature, or if no action is taken thereon with 40 days,” the measure goes to the ballot.

But a few lines later, it says “if the Legislature rejects such proposed statute or amendment … the Legislature may propose a different measure on the same subject,” and send that to the voters, too.

See the difference? In the second instance, the words “or if it takes no action” are missing. That led McDonald to suggest that if the Legislature doesn’t “reject” (i.e. vote down) the initiative in the first 40 days, it loses its ability to propose an alternative.

And since the 40th day of the 2013 session came and went on March 15, McDonald’s interpretation could have posed bad news for state Sen. Michael Roberson, who has suggested placing a measure to increase mining taxes on the 2014 ballot as a counter to the business tax, which Republicans hate.

But the Legislative Counsel Bureau came to the rescue Sunday, with a nine-page legal opinion that harnesses the dictionary, law and history to show that simply ignoring an initiative proposed by the people counts as “rejecting” it.

The memo, by Chief Litigation Counsel Kevin Powers, notes that bills are more commonly killed by the cruel indifference of lawmakers than by failing to get a majority of votes. Nevada’s legislative website is littered with the bones of ignored bills, which vastly outnumber those actually rejected by votes.

Powers cites the non-New York Times best-seller, “Elements of the Law & Practice of Legislative Assemblies” to prove that “rejecting” a bill can happen in a number of ways, including being voted down but more commonly by “postponing or ceasing all proceedings on the bill in the regular course of legislative business.”

And while the Legislature has voted down initiatives proposed by the people before (in 1921, an initiative to end “short-term” divorce decrees) or passed a resolution specifically rejecting an initiative (in 2011, a measure to create a special tax district to build an arena backed by Caesars Entertainment), it has also ignored an initiative to death. In 1981, an initiative to create a position in the attorney general’s office to protect consumers died after lawmakers took no action on it. But the Legislature still proposed an alternative during that session, which became law.

As for the phrase “or if it takes no action,” Powers suggests it’s there to ensure a citizen-proposed initiative goes on the ballot even in the rare case the Legislature doesn’t even bother to take it up at all, literally taking “no action.”

So that’s that: The business tax is definitely going to the 2014 ballot, but if Roberson can find his votes, he still has a chance to get an alternative before voters, too.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or ssebelius@reviewjournal.com.