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When the Legislative and Executive branches fight

The margin tax vs. mining tax debate was back in the news last week when, on Tuesday, the Governor, Secretary of State, and Attorney General weighed in on whether the Legislature may properly place a competing measure on the ballot to go up against the margin tax. As is almost always the case in Nevada politics, Jon Ralston had the scoop and the letters between the Governor’s and Secretary of State’s staffs. The letters essentially adopt my argument first published here that because the Legislature did not reject the margin tax initiative consistently with Article 19, Section 2(3), of the Nevada Constitution, the Legislature lacks authority to propose a competing measure to voters. This debate has centered on the meaning of one little word in that section of the Constitution: reject.

The Legislative Counsel previously weighed in that reject, as used in that section, must be read consistently with legislative practice, and any ambiguity in the meaning should be resolved in favor of the Legislature’s power to propose a competing measure. I was not convinced and I still remain dubious about that position, but I do recognize there is a reasonable argument in favor of both positions. But now that three constitutional officers have weighed in, there is a new Legislative Counsel memo that discusses this dispute in the context of the powers of the executive vis-a-vis the Legislature. In light of the continuing debate, I thought I’d add a few more thoughts to the mix.

First, though, I’ll note, politically, an alternative appears dead, at least as of April 4.

This debate is purely academic, unless Sen. Roberson can muster a majority of both houses to revive the issue. But even if the plan is dead politically, that won’t stop legislative and constitutional policy wonks from continuing to debate it.

‘Reject’ is not ambiguous in Article 19

The Legislative Counsel has argued that “reject” has a clear meaning that encompasses even the failure to act on an initiative. “[I]f the Legislature simply postpones or ceases all proceedings on the statutory initiative in the regular course of its legislative business by, for example, refusing to hear, accept, consider, acquiesce in or otherwise adopt the statutory initiative, the Legislature has rejected the statutory initiative for the purposes of Article 19, Section 2(3). Memo from Kevin C. Powers to Brenda J. Erdoes, March 17, 2013, at 3 (hereinafter LCB Memo I). Even if there were uncertainty, ambiguity, or doubt regarding the meaning of “reject” as used in this provision of the Constitution, “that uncertainty, ambiguity or doubt would have to be resolved in favor of the Legislature.” Letter from Kevin C. Powers to Sen. Michael Roberson, April 2, 2013, at 4 (hereinafter LCB Memo II).

As I reread the LCB memos, it’s apparent to me LCB’s reading relies on a significant premise: that the term “reject” is in fact ambiguous as used in Article 19 and does not have one clear meaning. I still think the better reading of “reject” is that at least one House of the Legislature must adversely express rejection. (Because of bicameralism, single-house rejection is enough to constitute rejection by the full Legislature.) Simply taking no action on a measure is equally as ambiguous as LCB would have one believe “reject” is. Measures die in the Legislature all the time for all kinds of reasons, but only when a full House takes a vote on a measure and expresses its rejection in some clear manner has the Legislature “rejected” the measure. Inaction is not rejection, but bills may die by being ignored.

As the Governor’s general counsel’s letter points out, construing the rejection requirement as the Legislature desires “is to interpret the Constitution in favor of an unresponsive legislature, which seems inconsistent with” the popular initiative process. Letter from Lucas Folleta to Secretary of State, April 1, 2013, at 4. Allowing the Legislature to compete with a popularly initiated measure “without directly addressing the people’s preferred alternative by a vote allows an officious Legislature to disrupt the people’s process without unequivocally declaring its dissatisfaction with” the initiated measure.” Id. at 4-5.

This policy argument is designed to rebut the Legislature’s contention that ambiguity must be resolved in the Legislature’s favor. I don’t know if that is necessarily true where the initiative process is concerned. Clearly, Article 19 is designed, at least in part, to reserve to the people the right to bypass an unresponsive legislature. Which argument will win the day in court is anyone’s guess.

Legislative practice is inconclusive, at best

The LCB memos rest on the three different methods by which the Legislature has “rejected” an initiative and thereafter submitted a competing measure to the voters as proof that the legislative practice supports their view that “rejection” can mean many things. I disagree. Legislative practice in Nevada is inconclusive, at best, and proves nothing more than a challenge on the meaning of “reject” has never made it to the state’s high court. Of the three times a competing measure has appeared on the ballot, twice was after legislative action that is fairly read as rejection (one failed of final passage in the Assembly and one was expressly rejected by concurrent resolution). Only once (so far) has a competing measure appeared on the ballot after legislative inaction. See LCB Memo I at 5-7. Indeed, in the first case, in 1921, where an initiative petition failed of final passage in the Assembly, the Nevada Supreme Court said the measure “was rejected,” Tesoriere v. District Court, 50 Nev. 302, 310 (Nev. 1927), implicitly agreeing that single-house rejection can be rejection by the Legislature, although that specific issue was not before the Court and could be cast aside as mere dicta.

The Nevada Attorney General has also discussed the Legislature’s three options as to an initiative measure. See Op. Nev. Att’y Gen. 51-18 (Feb. 19, 1951) (opining on whether the Legislature must act on an initiative).

At least one other jurisdiction supports an “adversely expressed” view of rejection

One thing I had not done was to research whether other states have similar constitutional language to Nevada’s and whether there is persuasive case law from those jurisdictions. As it turns out, there is. The Washington Constitution contains a popular initiative provision that is substantively very similar to Nevada’s. I have bolded the relevant text in both constitutions below. The Washington Constitution, at Article 2, Section 1(a), in part states

[I]nitiative measures …  shall be either enacted or rejected without change or amendment by the legislature before the end of such regular session. If any such initiative measures shall be enacted by the legislature it shall be subject to the referendum petition, or it may be enacted and referred by the legislature to the people for approval or rejection at the next regular election. If it is rejected or if no action is taken upon it by the legislature before the end of such regular session, the secretary of state shall submit it to the people for approval or rejection at the next ensuing regular general election. The legislature may reject any measure so proposed by initiative petition and propose a different one dealing with the same subject, and in such event both measures shall be submitted by the secretary of state to the people for approval or rejection at the next ensuing regular general election.

The operative language is virtually the same as the Nevada Constitution, which states “If the Legislature rejects such proposed statute or amendment, the Governor may recommend to the Legislature and the Legislature may propose a different measure on the same subject, in which event, after such different measure has been approved by the Governor, the question of approval or disapproval of each measure shall be submitted by the Secretary of State to a vote of the voters at the next succeeding general election.” Nev. Const. art. 19, § 2(3).

Although never expressly presented with the precise issues now under debate in Nevada, the Washington Supreme Court has had opportunity to discuss that state legislature’s power to propose competing measures to popularly initiated measures. In Department of Revenue v. Hoppe, while examining the validity of two enactments, one by popular initiative and one by legislative bill, the Court stated

[Article II, Section 1(a) of] the constitution is explicit in its direction to the legislature as to an initiative: the legislature shall either enact or reject the measure before the end of the regular session. Here the legislature did neither. The constitution contemplates such inaction and requires the Secretary of State to submit the initiative to the people at the next regular general election.

82 Wn.2d 549, 557 (1973) (en banc) (emphasis added). In other words, the Washington Supreme Court noticed the difference between enacting or rejecting an initiative and doing neither: inaction. The Nevada Constitution is equally as clear in this respect. The Legislature shall either enact or reject an initiative within 40 days. If it does neither, the initiative automatically goes on the ballot. But if, and only if, the Legislature rejects the initiative, it can propose a competing measure to face off against the initiative.

My reliance on Washington does suffer from one glaring weakness, although it is not fatal to my argument. I uncovered a few instances where an official voter pamphlet indicated that a competing measure was being submitted to the people along with the original people-initiated measure, even when the Washington Legislature took no action on the original measure. This practice reinforces LCB’s view that rejection can be had through inaction, though I still think an unchallenged practice proves little more than a court has never been asked to examine the unchallenged practice. A court has never been asked to decide whether “reject” has a particular meaning as used in the constitution’s initiative language, and if the issue ever does get before a court, both sides have strong arguments.

Getting to Supreme Court is not easy

Although there is a clear dispute over the meaning of “reject,” and although it deserves Supreme Court review, the path to get the Court to ever answer this specific question is, as fellow attorney Bradley Schrager pointed out, not easy.

Aside from the dated Internet reference (“Ask Jeeves” hasn’t appeared on the web in the U.S. since 2006), I agree. In order for the Supreme Court to tackle the meaning of rejection, an alternative would have to pass the legislature, dodge a veto or survive an override vote, and leave the Court with no other possible way to avoid the specific question. It would also require the Secretary of State to refuse to place a competing measure on the ballot or a challenge to an allegedly wrongful placement of a competing measure by someone with standing to bring that challenge in court. And none of that discusses other challenges possible under Article 19, Section 2. Politically, the alternative is dead, which also means the legal debate is dead, too. But even though pronounced dead, things in Carson City have a habit of rising from the ashes in the 11th hour. Nothing is truly dead for a session until the Legislature has adjourned sine die.

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1 Comment

  1. I for one, loved the Ask Jeeves reference.

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