Legislature’s lawyers play sleight of opinion … now you see it, now you don’t

At a Assembly Committee on Commerce and Labor meeting this afternoon on Assembly Bill 175, which proposes to raise the minimum wage from $7.25 an hour to $14 for employers who provide health insurance or from $8.25 to $15 for employers who don’t, the question came up as whether the lawmakers have the authority change that law since the current law was establishes by constitutional amendment approved by the voters in 2004 and 2006.

The lawyer for the committee, Will Keane of the Legislative Counsel Bureau, responded: “I spoke with the Legislative Counsel Brenda Erdoes. She told me that our office thoroughly researched this during the 2015 legislative session and then updated and confirmed that research during the drafting of AB175 this session. She said that as result of their research it is the opinion of LCB legal, based on the rules of statutory and constitutional construction, that the provisions of the minimum wage amendment to the Nevada Constitution do not limit the inherent power of the Legislature to establish by statute a new minimum wage that is higher than the minimum wage that is currently required by law.”

But this morning there was an LCB fact sheet from August 2015 posted on the Legislature’s website that read:

“Because provisions governing the minimum wage rate are included in the Constitution, any changes to the minimum wage provisions require a constitutional amendment. There are two ways to amend the Constitution. One way is through the citizen initiative process. Citizen initiatives for constitutional amendments must be approved in identical form in two consecutive general elections. This is the process that enacted the current minimum wage requirements in the Constitution. The second way to amend the Constitution is through the legislative process. The Senate or Assembly may propose a constitutional amendment, which must pass in identical form with a majority of members of both houses in two consecutive biennial sessions. After that, the proposal must pass a popular vote during the next general election.”

Now it has disappeared. Coincidence? The link now returns a 404 Error. But if you put the first sentence of the above fact sheet language into an Internet browser it will return to you a PDF titled: ”

Fact Sheet – 2015 Minimum Wage in Nevada

A cached version of the list of LCB fact sheets online has a link to Minimum Wage in Nevada (August 2015), but that link also returns a 404 Error.

A little sleight of opinion? A little selective editing?

Most web archive and cache services also came up empty, but something called Old Home Page came up with this link. In case that too disappears here is a PDF: minimumwage

lcb-fact-sheet

August 2015 LCB Fact Sheet excerpt

But a 2014 Nevada Supreme Court opinion in a case specifically about the minimum wage law is still online. That opinion states: “If the Legislature could change the Constitution by ordinary enactment, ‘no longer would the Constitution be “superior paramount law, unchangeable by ordinary means.” It would be ‘on a level with ordinary legislative acts, and, like other acts … alterable when the legislature shall please to alter it.’ In this case, the principle of constitutional supremacy prevents the Nevada Legislature from creating exceptions to the rights and privileges protected by Nevada’s Constitution.”

The opinion also flatly stated: “It is fundamental to our federal, constitutional system of government that a state legislature “has not the power to enact any law conflicting with the federal constitution, the laws of congress, or the constitution of its particular State.”

 

 

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10 comments on “Legislature’s lawyers play sleight of opinion … now you see it, now you don’t

  1. deleted says:

    So Trump not enforcing another law? I’m sure this will be condemned as the anti-Constitutional action which the right so hated the previous president for.

    I fear for our republic (eh Barbara?)

    http://www.latimes.com/business/hiltzik/la-fi-hiltzik-irs-obamacare-20170215-story.html

  2. Steve says:

    Patrick, according to local news it’s the IRS that made that decision.

  3. Steve says:

    It appears the Nevada LCB has changed their mind on their 2015 opinion.

    But the same pressures exist today that existed then with one important exception. The Democrats hold a majority. Though not a mandate since they don’t hold a veto proof majority.

    The legislature is being told they might find a legal challenge if they pass this without paying close attention to this constitutional question.

    However, it should be noted the amendment specifically requires annual reviews and increases in the minimum wage based on several things including, primarily, CPI.
    This may form the basis on which the LCB has decided the amendment creates a floor for the minimum wage, not a lock.

  4. No, the Constitution states categorically: “These rates of wages shall be adjusted by the amount of increases in the federal minimum wage over $5.15 per hour, or, if greater, by the cumulative increase in the cost of living.”

    Those are the only two bases for raising it. If voters had agreed to or assumed anything else, it should have been stated.

    But Democrats don’t need no stinking Constitution, and apparently neither do their lawyers. They did not “update” nor “confirm” their 2015 research. They reversed it.

  5. Steve says:

    Just before that section, under background and history (from the linked PDF);

    “An amendment to the Constitution to raise the minimum wage paid to employees in Nevada was
    approved by Nevada voters in 2004 and was reaffirmed in 2006. The 2006 voter approved
    2
    Minimum Wage Amendment to the Constitution requires the minimum wage to be reviewed each
    year; however, the rate does not necessarily change every year. The rates are adjusted by
    the amount of increases in the federal minimum wage over $5.15 per hour or, if greater, by the
    cumulative increase in the cost of living. The cost of living increase is measured by the percentage
    increase as of December 31 in any year over the level as of December 31, 2004, in the Consumer
    Price Index (CPI) for All Urban Consumers, U.S. City Average, as published by the Bureau of
    Labor Statistics. No CPI adjustment for any one-year period may be greater than 3 percent. Any
    increases take effect on July 1 of each year.”

    Clearly, the amendment requires annual reviews and allows for increases. While it is being argued in the legislature, those increases may not be allowed via legislative action without a change to the constitution. This cycle, LCB appears to have decided this section establishes the “floor”. There are other opinions being presented.
    BTW this appears to be the only place reporting on this legal issue.

  6. Yes, no one else is reporting.

  7. Steve says:

    And that leads me to conclude, this will be swept under the rug.
    And only show up if the Governor signs a law which would then be taken to court.

    Ah, efficiency.

  8. Tony Shelton says:

    This is not just the Democrats. The Republicans did this with Faraday. The constitution means nothing to LCB which has their own agenda. There were only four or five out of 63 who stood up for the constitution. See the same players, different bill, same. Constitution. https://youtu.be/vK7vL3C21Qw

  9. I like her question: What is the purpose of the Constitution?

  10. […] Bonnie McDaniel testifies from Las Vegas about a senate bill that would raise the Nevada minimum wage. You may read along here. […]

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