Democrats need outside lawyer in tax fight, judge rules

CARSON CITY — Elected state Democrats can’t be represented by the Legislature’s own lawyers in a lawsuit Republican senators filed to challenge the legality of two tax bills passed last session, a state judge has ruled.

The ruling means state Democrats named as defendants, including Senate Majority Leader Nicole Cannizzaro; Lt. Gov. Kate Marshall, as Senate president; and Gov. Steve Sisolak will need to be represented by outside counsel in the case, though fees will be paid by the state. The judge set April 1 for a hearing.

The dispute involves the Legislature’s votes last session to kill a scheduled decrease in the state’s modified business tax and keep a $1 technology fee on DMV transactions. Under a voter referendum approved in the mid-1990s, any bill that raises revenue from taxes in Nevada requires a two-thirds majority in both houses of the Legislature to pass.

The two bills in question met that threshold for passage in the Assembly but were one vote short of it in the Senate, where Democrats hold a 13-8 advantage. The bills passed the Senate by that margin and on party lines.

The business tax was scheduled to decrease with the start of the current fiscal year in July. Keeping it directs approximately $100 million in revenue to pay for education-related initiatives that were Democratic legislative priorities for the session.

Over Republican objections, Democrats pushed the bills through on the basis of a legal opinion from the nonpartisan Legislative Counsel Bureau. The bureau’s lawyers wrote that the two-thirds majority requirement did not apply when a tax is being extended at its existing rate. The eight Republican senators filed a lawsuit in July.

In Tuesday’s hearing, Carson City District Judge James Todd Russell sided with a GOP motion in the case to have the Counsel Bureau’s lawyers barred from representing the Democrats in the partisan dispute.

“It appears to this court that there’s a need for LCB to maintain its neutrality as to representation of all individual members of the Legislature,” Russell said. “I just don’t think you can pick sides by representing individual senators against other senators.”

Russell said that the bureau could file to intervene in the case to represent its own interests but that it “needs to be an independent entity” that must “render its opinions without any political influence on either side of the fence.”

The legal division of the Legislative Counsel Bureau is a nonpartisan office responsible for drafting legislation and providing legal advice to lawmakers of both political parties, whether they are in the majority or the minority.

Cannizzaro and Senate Democrats did not respond Wednesday to a request for comment on Russell’s ruling.

Contact Bill Dentzer at bdentzer@reviewjournal.com or 775-461-0661. Follow @DentzerNews on Twitter.