Court could decide constitutionality of governor, Legislature passing tax authority to counties

The Washoe County Commission, of all places, started a legal ball rolling this week that could flatten legislative and gubernatorial buck-passing and affect roads, police and school tax plans in the two urban areas.

As the Reno Gazette-Journal's Brian Duggan reported, the commission is going to court to try to resolve issues surrounding a bill passed by lawmakers and signed by the governor that would enable Washoe County to raise sales taxes to rehabilitate schools. But the ruling by the court, which surely will be appealed to the Supremes, could affect not just the Washoe schools tax but Clark County gas and police tax measures that faced similarly tortured legislative and gubernatorial attempts to evade responsibility.

The video of the meeting (motion comes at 34 minute mark) indicates that the request is designed to rule on the consitutionality of these so-called enabling taxes -- where the state "enables" locals to raise taxes, thereby not having (or trying not to have) tax votes on their records. But conservative groups such as the Nevada Policy Research Institute and Americans for Prosperity have argued that this is unconsitutional.

As NPRI President Andy Matthews wrote last month: "Under the Nevada Constitution, the power to raise taxes rests with the state legislature (which can only do so with approval from two-thirds of the members of both houses), and so it’s highly questionable whether state lawmakers were within their right to hand this decision off to the locals without approving the tax hike itself."

Or as an AFP post said in May: "The people of Nevada voted a constitutional provision to require a 2/3 super-majority requirement on all legislative tax increases, but now the legislature is doing an end-run around this requirement by forcing a local elected body to impose new taxes on the legislature’s behalf. Further, the voters of Washoe County elected County Commissioners to exercise their personal judgment with regard to tax increases, but now the legislature is trying to mute the voices of the people, as expressed through their elected representative, by coercing them into taking a specific decision."

The bills all received two thirds majorities. But none of them required them -- legislative attorneys have opined that because the bill does not in and of itself increase revenue, it does not require two-thirds. But if the measures had needed two-thirds by law, would they definitely have attained supermajorities?

That's yet another issue -- if an enabling bill needs two thirds -- for the court to decide if it were to say that lawmakers actually have the authority, which is highly questionable. 

These conservative groups are not alone. Common sense says this is political cowardice codified. Yet no matter what AFP or NPRI say -- and one or both may have sued if the commission hadn't acted and still might -- a judge (or justices) will decide this question.

The ultimate decision won't transplant spines into the invertebrates in the Gang of 63. But it may take one of the asterisks off Gov. Brian Sandoval's no-new-taxes pledge, and it could nullify one Clark County Commission decision and throw the police and schools issues into limbo.