NOTE TO READERS: Vin Suprynowicz specifically authorizes & encourages the copying, forwarding and re-posting of this column, with the sole proviso that, as a matter of courtesy, no new material not of his making be interpolated (mixed in) to create the impression he wrote it. Column originally posted at vinsuprynowicz.com
On Tuesday morning, March 4, Kermitt Waters, a Las Vegas attorney whose main job is defending Nevada property owners whose land is being seized by government agencies offering low-ball prices (and who to that end joined with retired Judge Don Chairez to successfully bring us the “PISTOL” property-rights initiative back in 2004-2006) will stand before the full Nevada Supreme Court on the top floor of the leaky boondoggle “Regional Justice Center” in Las Vegas, staging a last-ditch defense of the constitutional right of Nevadans to participate in their own government through the initiative and referendum process, as supposedly guaranteed by the state Constitution.
With the public kept away by limited seating and armed guards operating metal detectors, Mr. Waters will stand alone. He will be there on his own time and at his own expense, with nothing to gain financially. Arrayed against him will be the expensive and fancy lawyers of the Nevada state Legislature, the Nevada Attorney General’s office (defending Nevada’s Secretary of State), the casino industry, the mining industry, and a plethora of other special interests anxious to see that the common citizenry is left with no ability to go to the polls and do end-runs around the state lawmakers who these potentates have bought and paid to do their bidding.
Hardly anyone is paying attention. And because the political appointees who make up Nevada’s high court are political animals, Mr. Waters’ efforts are probably doomed to be tossed out on a number of grounds – “not ripe, no standing,” what have you — without the real issue even being discussed.
Up through 2006, Nevadans were accustomed to facing a half dozen referendum questions on each statewide ballot. Most were dumb, most were rejected, but voters got to decide. In recent years, however — with the exception of one measure brought forth by the teachers’ union as a bargaining chip — there have been none. What happened?
What happened was Senate Bill 224, enacted in 2005, and authorized, ironically enough, by a constitutional provision that allows the Legislature to “facilitate the initiative process.” (!) SB 224 granted third parties — the casino industry, the mining industry, the big unions — the power to challenge initiative petitions in court. Nearly always better funded than the poor petitioners, they now routinely challenge based on clarity and accuracy of the summary language, on all kinds of grounds. Meantime, the clock is ticking, even as the sponsors are blocked by such legal challenges from gathering their needed signatures. The goal is to cost petitioners much of the money they would have paid to signature gatherers, while also running out the clock.
It always works, in part because SB 224 also created a “single-subject” rule, designed to prevent “Trojan Horse” initiatives like that put forward by the trial lawyers back in 2004. The lawyers’ ballot item had the sweetener up front – rolling back auto insurance rates. But the stinger — eliminating caps on non-economic damages in medical liability cases, which is what the lawyers really wanted — was in the tail. The trial lawyers even put in a separation clause, stating that if one part of their proposal (like, maybe, the insurance rate relief) got thrown out by the courts, the rest (like, maybe, the repeal of damage caps) would remain in effect.
Nevadans — aided by a series of editorials in the Review-Journal back when it was published by a Nevadan, Sherman Frederick, and edited by a competent journalist, Thomas Mitchell — saw through this Trojan Horse and sent it down to defeat. SB 224 was supposedly designed to prevent more such misdirection. It sounded good at the time.
WHAT’S GOOD FOR THE GOOSE
What a lot of people don’t realize is that the Nevada state Constitution places a “single-subject” restriction (Article 4, Section 17) on laws proposed by the legislature, as well. And Kermitt Waters has presented the court with a sworn affidavit from an esteemed English professor stating SB 224 contains at least 14 subjects. Even at the time it was being debated, state Sen. Bob Beers of Las Vegas pointed out how odd it was that — in order to block future multi-subject referenda — the Legislature was resorting to a law that could in no way be held to obey the constitution’s requirement that all laws enacted by the Nevada Legislature themselves deal with only a single subject.
What’s happened, of course, is that Nevada’s courts over the years have applied a “liberal standard” to the Constitutional restriction that the Legislature can bring forth and enact only those laws which deal with a single subject. What that means is that, as a courtesy among thieves, they don’t enforce the restriction at all. Yet when all those third-party challengers now haul citizens wishing to put referenda on the state ballot into court, the court enforces the matching “single-subject” rule in SB 224 so rigorously, in such a harsh and Draconian manner, that only one initiative — brought by the powerful and legislatively favored state teachers union as a negotiating tool – has managed to survive.
Kermitt Waters points out this has become such a Catch-22 that when petitioners seek to go to the polls to change public spending priorities, their efforts are thrown out by the courts on the grounds that citizens are not allowed to specify the allocation of tax dollars without identifying a new tax or other source from which new funds shall come. Yet when they attempt to both mandate new tax revenues and dictate where those funds should go, the courts then throw out THOSE efforts, contending the raising of money and the allocating of money are ”two different subjects” and thus not allowed in the same proposal – while the Legislature does this all the time. (Who the heck is going to OK a new tax without knowing where the money is — at least theoretically — supposed to go?)
Is it clear now why no new ballot questions — except those issued by the politically favored monopoly teachers’ union or the Legislature itself — are getting to the ballot where the citizens can vote them up or down?
Kermitt Waters’ case is designed to place the court in an uncomfortable bind. He wants them to throw out SB 224 on grounds it has at least 14 subjects, violating the state constitution’s requirement that laws brought forth by the Legislature deal with only a single subject. That would get rid of the “single subject” rule for initiative petitions, created by SB 224.
But on the other hand, if the court holds SB224 does NOT violate the single-subject rule, then he wants the court to apply the same standard to the proposed initiative he has submitted as part of his case, granting him summary judgment that his proposed initiative ALSO does not violate the single-subject rule, allowing signature-gathering to proceed in the clear, without obstructionist lawsuits from all the moneyed special interests, which tie up those proposing referenda in court for so long, and at such great expense, that by the time the miners and the casino bosses and the unions are done with them they have neither sufficient time nor funds remaining to get their proposals on the ballot.
You should hear the powers-that-be squawk about this. Legislative attorneys Brenda Erdoes and Kevin Powers respond in their brief by quoting the U.S. Tenth Circuit Court to the effect that lawmakers who have raised enough money from the special interests to get elected to office, versus mere voters, are “not similarly situated classes,” since lawmakers have staffs and the hearing process to carefully consider the bills they pass, while the common dolt has no idea what he’s doing, explaining why the peasant “class” must be chained down by a much harsher “single-subject” rule.
Talk to anyone who’s witnessed the 24-hour marathon that concludes each Nevada legislative session, with well-heeled Carson City lobbyists shoveling new material into “shell” bills, and exhausted lawmakers explaining they’ll have to wait for the bills to come back from the printers to find out what they voted on, to get a perspective on that Pollyannish notion.
But the ruling class are worried. We know this because both Erdoes and Powers and state Attorney General Catherine Cortez Masto, daughter of the late Convention and Visitors Bureau boss Manny Cortez, plead in their briefs that — should the court decide to start enforcing the constitution’s single-subject rule on the Legislature – at the very least they should please, pretty please at least not do so retroactively, lest “a great number of laws that were enacted many years ago be declared invalid.”
(Wait a minute, did the state attorney general and the attorneys for the Legislature just admit they’ve been violating the constitution for years? They sure did. Erdoes and Powers admit “For the last 150 years, it has been a long-standing practice for Nevada’s legislative bodies to combine multiple provisions into a single act, EVEN IF THEY ARE NOT RELATED TO EACH OTHER. . . .”)
In fact, if the single-subject rule were actually imposed on the Legislature, as called for by the highest law in the land, that would “be extraordinarily disruptive to the legislative process because it would exponentially increase the number of bills” and “make the legislative process unmanageable,” Miss Erdoes and Mr. Powers whimper.
OPEN PUBLIC DEBATE
Now I will admit, I didn’t know it was official that there are “two classes of people” in Nevada, the ruling elite that can violate the Constitution with impunity, and the poor peasants, taxed and regulated within an inch of their lives, who shouldn’t be allowed to impose or repeal laws and enactments without the OK of the politicians funded by the casino owners, et al.
In fact, if there ARE “two classes” of Nevadans, Miss Erdoes and Mr. Powers have it exactly backwards. Under our federal and state constitutions, it is the people whose rights and powers are practically unlimited, and it is not the court’s duty to keep these troublesome peasants from interfering with the way the Legislature wants to churn out their ever-increasing blizzard of taxes and tax exemptions and economically crippling protectionist regulations and other special favors for their big “campaign donors.” Rather, it is the court’s duty to help the people bind up more tightly with the chains and shackles of the Constitution the lesser class, which is far more likely to turn itself into a criminal class (that being the state’s elected officials), in order to limit the mischief they seek to do.
Why is it that, every time Nevadans are asked to OK a full-time Legislature, or even annual sessions of the Legislature, they resoundingly vote “No,” insisting that the Nevada Legislature (almost uniquely, which is why this remains among the freest states) limit its mischief-making to a few months every other spring? Is it because Nevadans think we don’t have enough laws, and we need a lot more of them? Of course not!
Who says it’s a good thing that the “Nevada Revised Statutes,” a mere handful of volumes when we were kids, have now expanded to more than 40 volumes, more than will even fit on a single bookshelf? There’s the result of our current cozy and easily “manageable” legislative process. Are you telling me voters, given the chance, wouldn’t instruct Carson City to choose 30 percent of those laws and regulations to repeal next year, just for starters?
Everyone knows that when you have a plethora of laws — so many that no one person can any longer know them all — you have more corruption and less justice. What would be so terrible about a ruling that imposed such hardship on the Legislature that they had to set priorities, bring forth laws that dealt with only a single subject as required by the people in their Constitution (a document designed to strictly limit the reach and power of our elected officials, presumed to be largely untrustworthy from the get-go) and could thus enact only a much smaller number of new laws each year?
I don’t agree with Kermitt Waters on everything he wants to do, by any means. He’s a populist, not a Libertarian. The petition he wants the court to approve for the ballot would remove the property tax from all owner-occupied single-family homes (great idea, but why not on duplexes and renters?) To make up this revenue — when it’s always the best course to shrink government by NOT making up the revenue — he would then raise the mining tax on gold, silver, platinum, oil and gas from 5 percent on net to 30 percent on gross (wow); place a graduated 1 to 2 percent tax on the gross receipts of all non-casino, for-profit businesses grossing more than $1 million per month (think that won’t drive up grocery prices?) and funnel the resulting loot into huge raises for schoolteachers, into a new appellate court (a bone cynically thrown to the jurists) and into massive wind- and solar-power boondoggles, funded essentially forever, no matter how impractical they prove.
The real solution to our failing “education system” is to get government out of the business of having anything to do with our schools. And unfortunately, the promise that higher taxes will fall “only on the big guys” and won’t hurt the working class always turns out to be wrong. In fact, taxes are a form of slavery, grabbing the wealth from those who create it and handing it over to our government masters, supposedly to “redistribute to the deserving,” though in fact all those creeps really want is their hands on the levers of power, so they can collect their bribes to re-direct those revenue streams right back to those who can afford to pony up those little envelopes full of cash. Taxation is slavery, and the solution is not to re-direct the stolen loot, but to stop stealing it.
They’re well intentioned, but we all know where good intentions can lead. Portions of Mr. Waters’ proposed constitutional amendment are unwise. They could end up making his opponents’ “ill-thought-out” argument for them. He might have been on more solid ground to stick with the portions calling for the use of modern electronic means to make it easier for citizens to get their reform proposals (like, especially, repealing taxes and the drug and gun laws) on the ballot, where the voters — given enough time, and a competent press that does its job of explaining things — can generally be trusted to reject anything that reeks of crackpottery.
But I do not take a “by whatever means” approach to opposing portions of Mr. Waters’ current proposal. Let him bring it forth, and let it be voted up or down after a vigorous, well-informed public debate. Because what Mr. Waters is fighting for, Tuesday, is the right of the people to use their penultimate remedy — initiative and referendum at the polls — to correct the worst excesses of a corrupt Legislature.
If they are barred from using their next-to-last remedy, the only one left to them will be their last remedy. And then we’ll get to see how the political class likes that.
Vin Suprynowicz is the author of “Send in the Waco Killers,” “The Ballad of Carl Drega,” and the novel “The Black Arrow.” His columns appear in Shotgun News, and at vinsuprynowicz.com.