CARSON CITY — The state Legislative Commission has voted to appeal a ruling disqualifying legislative lawyers from representing Democrats in a lawsuit over the constitutionality of two tax measures.
Carson District Judge Todd Russell agreed with Republicans in November that the Legislative Counsel Bureau cannot represent one group of lawmakers in a legal battle against another group of lawmakers.
He disqualified the bureau from representing the majority Democrats in the Senate but allowed the legal division to stay the case.
The Nevada Appeal reports the commission voted Monday along party lines to appeal the ruling. The next court hearing is set for Jan. 21.
The lawsuit argues the two tax bills that were passed by a simple majority should have required two-thirds approval under the guidelines of the Nevada constitution.
The eight Republican members of the Senate along with several boards and associations sued after the majority Democrats passed bills extending the sunsets that were scheduled to lower the modified business tax rate and a Department of Motor Vehicles technology fee by a vote of 13-8. That is one vote shy of the two-thirds majority they argue has always been applied to sunset extensions as well as new or directly increased taxes.
They cited a Legislative Counsel Bureau opinion that two-thirds isn’t required in this case because it wasn’t raising taxes, just extending existing taxes.
While the technology fee is tiny, the MBT extension was estimated to generate more than $100 million for K-12 education.
Judge Russell’s ruling cited arguments put forward by Republicans led by Minority Leader James Settelmeyer, R-Gardnerville.
“It appears to this court there is a need for LCB to maintain neutrality with respect to all members of the Legislature,” Russell said in the November hearing.
He told both sides the individual lawmakers should either be dismissed from the lawsuit or they need to get private counsel.
His ruling, if it stands, would require Majority Leader Nicole Cannizzaro of Las Vegas, Lt. Gov. Kate Marshall and Senate Secretary Claire Clift to get their own lawyers while LCB would represent only the interests of the Legislature as a whole. Chief litigation counsel Kevin Powers told the commission Monday the ruling must be appealed because it would apply not just to litigation but all legal services. He said the ruling raises “serious questions” whether LCB legal staff would even be able to provide bill drafting if one group of lawmakers opposes the requested bill.
Powers said the appeal is needed to protect the integrity of LCB. He asked for a vote to direct LCB to take all actions necessary to overturn the disqualification.
Republicans voted against the appeal despite being told voting against appeal could be a conflict of interest.
Supporters of the vote argued that failing to pass the MBT extension would unconstitutionality unbalance the state budget. However, the Appeal reported Tuesday there is enough extra money in the state treasury to cover the $100 million if the Republicans win the lawsuit.