Editorial: The one question to ask every candidate

The major party primaries are over and it is on to the General Election this November. The candidates will be making the rounds shaking hands and asking for your vote.

So, stick out your right hand and firmly clutch you wallet with your left, then ask where this candidate stands on the question of whether to alter the current property tax law.

Back in 2005, when property values across the nation and especially in Nevada were skyrocketing, Nevada lawmakers passed a law capping the annual increase in residential property tax bills at 3 percent and business property tax hikes at 8 percent. (The fact the Nevada Constitution states that all “property belonging to corporations now existing or hereafter created shall be subject to taxation, the same as property of individuals …” is a topic for another day.)

The law also created two other caps based on two economic measures — the 10-year average percentage of change in assessed values of homes and the average percentage of increase in the previous year’s Consumer Price Index multiplied by two. The higher of those two figures became the cap so long as it was less than 3 percent.

When the housing bubble burst and property values plummeted the law had the perverse effect of allowing some property tax bills to continue to increase even though the property values were on the decline. But values are on the upswing again.

In the 2017 Legislature a bill was introduced to basically change the property tax caps from ceilings to floors. The bill’s digest stated flatly, “This bill revises the formula for calculating the partial abatement so that the annual cap on increases of the property taxes on certain single-family residences and residential rental property cannot be less than 3 percent.”

The bill, backed by a majority of Democrats, eventually died because it could not garner the requisite two-thirds majority required for a tax increase under the Constitutional amendment successfully ushered in by former Gov. Jim Gibbons.

You see, with inflation currently in check and the 10-year average of property values now including the years of slumping values, the property tax caps in urban counties have been well below 3 percent.

According to the Nevada Department of Taxation, for Fiscal Year 2016-2017 the residential tax cap in Carson City, Clark, Douglas, Lyon, Nye and Washoe counties was 0.2 percent. Still an increase but one that left the local governments crying poverty. The caps in Elko, Esmeralda, Eureka, Humboldt, Lander, Lincoln, Mineral and Pershing counties were 3 percent, with the rest lying somewhere in between — 1.9 percent in Churchill, 2.9 percent in Storey and 1.5 percent in White Pine.

But it is not like Nevada has low property taxes. According to Tax-Rate.org, in 2018 Nevada ranks 24th in the nation in order of the average amount of property taxes collected and 28th in property taxes as a percentage of median income.

According to Zillow, Nevada home values have gone up 15.4 percent in the past year and predicts they will rise 6.7 percent within the next year. This is what has the property tax cap change proponents salivating.

If those seeking to remove the current caps have their way, property taxes could easily double or triple in a matter of years.

So, be sure to ask the candidates with extended hands whether they are really reaching for your wallet.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

We are still waiting for the voice of Nevada voters to be heard — 22 years and counting

Facebook has this algorithm that pops up something you’ve shared online in the past and asks if you’d like to repost it. It might a cute pix of your dog or a vacation remembrance.

This time it turned out to be a reminder that the will of the voters of Nevada had been ignored for 16 years. It was a link to a blog based on a column that appeared in the Battle Born Media newspapers. Oh yes, it was first posted in February 2012, six years ago, so now the will of the Nevada voters has been ignored for 22 years.

Here is the column appeared in the newspapers but has long since disappeared into the ether:

By Thomas Mitchell

This is not federalism. It is feudalism.

As most Nevadans know, the federal government holds sway over somewhere between 83 and 92 percent of the land in this state, depending on which official government source you cite. That is the highest percentage of any state in the union, including Alaska.

This is the result of something known as a Disclaimer Clause included in the statehood act admitting Nevada as a state. As a condition of entry into the union, the state was required to “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.”

The federal government, not the state, controls the land known as Mount Wilson. (Pix by Jo Mitchell)

Putting aside the extortionate nature of the demand and that it was agreed to under duress and that it encumbered generations not yet born, nowhere in the Constitution is the federal government granted an enumerated power to deny any state sovereignty over its own lands. Even sharecroppers have more rights than that.

Over the years it has been unsuccessfully argued that the Disclaimer Clause violates the spirit and letter of the Equal Footing Doctrine under which every new state admitted to the union does so under the same conditions as the 13 original states.

On Oct. 31, 1864, the president proclaimed:

“Now, therefore, be it known, that I, Abraham Lincoln, President of the United States, in accordance with the duty imposed upon me by the act of congress aforesaid, do hereby declare and proclaim that the said State of Nevada is admitted into the Union on an equal footing with the original states.”

In fact, in 1911 the U.S. Supreme Court in Coyle v. Smith opined, “No prior decision of this court sanctions the claim that Congress, in admitting a new State, can impose conditions in the enabling act, the acceptance whereof will deprive the State when admitted of any attribute of power essential to its equality with the other States.”

That seems clear enough, but it has been roundly ignored.

Grazing rights are routinely canceled for arbitrary reasons. Roads are closed in order to protect some minnow or bug no matter how much it inconveniences the residents. Permission to obtain rights of way and mining permits languish for decades in the federal bureaucracy. All should be responsibilities of the state of Nevada.

It is estimated that 13 Western states forgo $4.2 billion a year in property taxes due to the vast holdings of untaxed land by the federal government.

In 1993 Nye County Commissioner Dick Carver wrote a lengthy letter to the governor and the various heads of the federal agencies controlling public land in the state. He convincingly argued:

“The people of the Nevada Territory had no authority to pass this act. Research has shown that first, the people of the Territory of Nevada had to give up all their ‘interest’ in the unappropriated lands of the Nevada territory to the Congress of the United States so Congress could pass said lands to the State of Nevada upon acceptance of Nevada into the Union. Then Nevada would become a free sovereign state as the original thirteen states relating to land.”

What many have forgotten is that in 1996 the citizens of Nevada voted to change the Nevada Constitution and strike the Disclaimer Clause. It passed with more than 56 percent of the votes.

Ballot Question 4 read simply: “Shall the Territorial Ordinance of the Nevada Constitution be amended to remove the disclaimer of the state’s interest in the unappropriated public land?” Yes or no.

Nearly 16 long years later, the state Constitution still contains a footnote explaining that the amendment was “proposed and passed by the 1993 legislature; agreed to and passed by the 1995 legislature; and approved and ratified by the people at the 1996 general election, effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary.”

Congress has not consented. There has been no legal determination.

Speaking of feudalism, the right to petition for redress of grievances was first embodied in the Magna Carta in 1215.

The Founders thought this so fundamental they included it in the First Amendment as one of five key rights delineated there.

For the voters of Nevada, this right has not been denied, just simply ignored.

In the subsequent blog I noted that I had emailed the office of Gov. Brian Sandoval and asked what he would do, if anything, to address the vote of the citizens of Nevada taken nearly 16 years earlier, but roundly ignored ever since.

I wrote, “I’ve had no reply yet. Just like the voters. I wonder if I will still be waiting 16 years hence.”

Well, it has been six years, only 10 more to go.

YouTube video posted with the blog six years ago:

 

 

Nevada Supreme Court has come down strongly for separation of powers

One of the citations offered by the Nevada Policy Research Institute in its lawsuit seeking to enforce the state Constitution’s Separation of Powers Clause and ban public employees from serving in the Legislature is a 1967 Supreme Court ruling titled Galloway v. Truesdell.

NPRI sued state Sen. Heidi Gansert, who also is employed as a flack for the University of Nevada, Reno, arguing she can’t hold both jobs because the Constitution says a person exercising power in one branch of government may not perform any functions in another branch.

The 1967 case does not involve one person serving in two branches but it does address the constitutionality of whether a person serving in one branch may also exercise powers constitutionally assigned to another.

The court found the law that dictated that judges should determine who may perform marriage ceremonies was unconstitutional under the Separation of Powers Clause. The court concluded: “NRS 122.070 is unconstitutional and void because it violates Article 3, Section 1, and Article 6, Section 6, of the Nevada Constitution by imposing legislative, administrative, ministerial, and investigative functions upon the District Courts and District Judges that are non-judicial in character and are unauthorized.”

The opinion quotes liberally from a series of articles by Arthur Vanderbilt, former chief justice of the Supreme Court of New Jersey:

“Individual freedom and the progress of civilization are attainable, but only if each of the three branches of government conforms to the constitutional principles of the separation of powers. This they will do only if the people so will. The problem in the first instance thus becomes one of popular education in the fundamental principles of free government. Among these principles there is none more significant today than the doctrine of the separation of powers.”

It also quotes Montesquieu:

“Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be the legislator: Were it joined to the executive power the judge might behave with all the violence of an oppressor.”

The court further quotes the Latin maxim “expressio unius est exclusio alterius,” which means the expression of one thing is the exclusion of another, and noted that it had ruled in an earlier case:

“It is true that the constitution does not expressly inhibit the power which the legislature has assumed to exercise, but an express inhibition is not necessary. The affirmation of a distinct policy upon any specific point in a state constitution implies the negation of any power in the legislature to establish a different policy. `Every positive direction contains an implication against anything contrary to it which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the law-making authority as strong as though a negative was expressed in each instance.'”

Separation of powers is a fundamental and recognized law of the land as expressly stated by the Nevada Constitution. To find otherwise is a farce and a canard.

 

ESA lawsuit: The phrase that everyone is ignoring

There is a key phrase that is being largely ignored in the debate over whether the legislatively approved education savings accounts (ESAs) are constitutional.

That phrase is: “for the student population reasonably estimated for that biennium.”

When Nevada voters approved the amendment to the state Constitution dubbed Education First, this is how the initiative was described:

Education first ensures our state’s public school system will be funded, before any other program for the next fiscal biennium, during each legislative session, by an appropriation the Legislature deems to be sufficient to fund the operation of our public schools for the student population reasonably estimated for that biennium.

Under Senate Bill 302, most parents who pull their children from public schools would be given 90 percent of the per pupil funding approved by the Legislature for that biennium. They could use it to educate their children by whatever means they choose — private school, tutoring, homeschooling.

Specifically:

This bill establishes a program by which a child enrolled in a private school may receive a grant of money in an amount equal to 90 percent, or, if the child is a pupil with a disability or has a household income that is less than 185 percent of the federally designated level signifying poverty, 100 percent, of the statewide average basic support per pupil.

The school funding bill, Senate Bill 515, states: “The basic support guarantee for school districts for operating purposes for Fiscal Year 2015-2016 is an estimated weighted average of $5,710 per pupil.”

District Judge James Wilson of Carson City in his injunction blocking enactment of the ESAs as unconstitutional declared that Article 11, Section 6.2 determined that “appropriation” means “to set apart for or assign to a particular purpose or use in  exclusion of all others” and therefore using part of that appropriation for ESAs violates the state Constitution.

In its entirety 6.2 states:

During a regular session of the Legislature, before any other appropriation is enacted to fund a portion of the state budget for the next ensuing biennium, the Legislature shall enact one or more appropriations to provide the money the Legislature deems to be sufficient, when combined with the local money reasonably available for this purpose, to fund the operation of the public schools in the State for kindergarten through grade 12 for the next ensuing biennium for the population reasonably estimated for that biennium.

So, if the population is reduced for each pupil pulled out of public schools, is that money still “appropriated”? Or is it then available for some other purposes, because the Legislature deemed the per pupil funding to be sufficient?

How are parents of public school children harmed if their schools get 10 percent of the funding for pupils who are not in their public school population? Additionally, public school districts keep local and federal funding. Seems more like a benefit than an irreparable harm to the parents of public school children.

Actually, for some counties there might be a huge windfall, depending on interpretation of the law, because the DSA differs for every county. For example, Esmeralda is guaranteed $24,331 per pupil; Lincoln, $10,534; White Pine, $7,799; Eureka, $9,633; Mineral, $8,980; Clark $5,512; but Lander gets only $4,374 — with some adjustments for local property tax collections. Since the ESA payout is based on 90 percent of the statewide average per pupil of $5,710, does each county keep the difference?

Attorney General Adam Laxalt has asked the state Supreme Court for an expedited ruling.

 

 

To Attorney General-elect Laxalt: About that Disclaimer Clause in the state Constitution

Attorney General-elect Adam Laxalt talks about his priorities (R-J photo)

 

In one ear and out the other.

Well, I can’t really blame him, with all the people who were shaking his hand and whispering in his ear.

I bumped into Adam Laxalt on the campaign trail a couple of times and listened to his spiel. He would often mention the problem Nevada has with the federal government controlling 85 percent of the land in the state — land that could be put to economic benefit. And, as he did with a Las Vegas newspaper reporter, he would note that federal ownership is established in Nevada’s Constitutioin.

What he is referring to is the Disclaimer Clause, which was put in the constitutions of a number of states to establish free and clear title to unappropriated land.

That clause says the state does “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.”

Not only is the intent of that clause in question — Otherwise why does it also say, “That five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …” — but the voters of Nevada amended the Constitution in 1996 and removed the Disclaimer Clause entirely.

I told Laxalt that when I got a chance to bend his ear. He said he was unaware of that — most everybody is — but would look into it. Apparently he has forgotten.

The Constitution for the past 18 years has contained a footnote:

[Amended in 1956 and 1996. The first amendment was proposed and passed by the 1953 legislature; agreed to and passed by the 1955 legislature; approved and ratified by the people at the 1956 general election. See: Statutes of Nevada 1953, p. 718; Statutes of Nevada 1955, p. 926. The second amendment was proposed and passed by the 1993 legislature; agreed to and passed by the 1995 legislature; and approved and ratified by the people at the 1996 general election, effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary. See: Statutes of Nevada 1993, p. 3136; Statutes of Nevada 1995, p. 2917.]

This was the amendment:

That the people inhabiting said territory do agree and declare, that [they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States; and that] lands belonging to citizens of the United States, residing without the said state, shall never be taxed higher than the land belonging to the residents thereof …

There has been no consent by Congress nor legal determination made. I can find no evidence any member of the Nevada congressional delegation or any state attorney general has ever pressed the matter. And you thought elections had consequences and a right to redress grievances.

How soon they forget.

 

 

 

 

 

Newspaper column: Court need only read the Nevada Constitution to find grounds for free speech

It drives me to distraction when smart lawyers try to peel away tiny layers of the law with a scalpel instead of bashing it with a sledgehammer.

That’s what the attorney for Citizen Outreach did recently before the Nevada Supreme Court. He argued that fliers sent out by the group in 2010 did not trip over the state law requiring “express advocacy” groups to file spending reports and disclose donors, as recounted in this week’s newspaper column available online at The Ely Times, the Elko Daily Free Press and the Mesquite Local News.

In 2013 the group was fined $10,000 plus $7,600 in costs by Carson City District Judge James Todd Russell for failing to report the source of the donors for the expense of the fliers.

Attorney Allen Dickerson said fliers critical of then-Assemblyman/firefighter John Oceguera as a double-dipper and big spender did not contain the “magic words” that would trigger a legal requirement for disclosure. The “magic words” concept comes from the U.S. Supreme Court case of Buckley v. Valeo that held disclosure could be required if words such as “vote for” or “elect,” “support,” “cast your ballot for” are used in the message.

Deputy Attorney General Kevin Benson, suing on behalf of Secretary of State Ross Miller, said the state law doesn’t require the use of “magic words” and the entire context should be examined for intent.

Nevada Revised Statute 294A.140 requires anyone who spends a certain amount of money for or against a candidate to file with the secretary of state the names and addresses of contributors.

The First Amendment says Congress shall make no law abridging free speech and free press. The 14th Amendment extends this prohibition to the states.

Thus, Buckely v. Valeo is the Supreme Court’s interpretation of how political speech can be abridged by requiring paperwork and forced disclosure of donors who would otherwise choose to remain anonymous.

But this is Nevada and we have our own Constitution in which Article 1, Section 9 says: “Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

NRS 294 clearly restrains and abridges. Buckley v. Valeo is irrelevant.

You don’t need to turn Talmudic scholar and pore over the nuances for just how the Buckley court conjured up from the bottom of a top hat a handful of “magic words” that may be abridged under the First Amendment, any more than you would have to turn to U.S. high court rulings on the 16th Amendment to interpret how the Nevada Constitution bans an income tax.

The words are clear and unambiguous — “no law shall be passed to restrain or abridge the liberty of speech or of the press” — and thus any state law that does so violates the state Constitution and is null and void from inception. A $10,000 fine in any dictionary is a restraint — barrier, check, coercion, compulsion, constraint, control, curb, deterrence, duress, force, inhibition, limitation, manacle, prevention, prohibition, repression, restriction, suppression, etc.

This is not the first time free-speech-hating Ross Miller, who just lost an election bid for state attorney general of all things, has had groups prosecuted for speaking up.

Back in 2010 the target of the thought police was a Virginia-based organization called Alliance for America’s Future, which was running ads supportive of the candidacy of Republican gubernatorial candidate Brian Sandoval.

A sympathetic Carson City judge shook out the Bill of Rights and discovered within its folds some brand new rights never dreamt of by the Founders. Judge James E. Wilson Jr. discovered the inalienable right to not be duped.

“Nevadans have a right to know who is behind election advertising,” Judge Wilson explained to us peons who were under the mistaken impression that the Federalist and Anti-Federalist papers, as well as “Common Sense,” were penned anonymously. “Continued violation of the statutes and depriving Nevadans of information about who is behind its election advertising will cause irreparable harm as voting will be influenced by unknown persons and voters will not have, through the proper channel, i.e., the Secretary (of State) information they need to determine what weight to give the advertising. Compensatory relief cannot compensate for this type of harm.”

Apparently there is a right to drag more information out of a speaker than the speaker wishes to convey, because voters are too stupid to evaluate anonymous speech for themselves. Compelled speech is not free speech.

The Nevada Supreme Court will rule later on the Citizen Outreach overreach by Miller, but on what grounds? Will they rule for liberty or restraint and abridgement?

Question 2: There is a reason the mining tax cap is in the state Constitution

Only days after the state of Nevada celebrates its 150th anniversary of statehood on Oct. 31, voters will be asked on the General Election ballot whether to repeal a section of the Nevada Constitution on which the very question of statehood hinged those 150 years ago.

In September 1863 the residents of the Nevada territory voted by a margin of 4-to-1 to seek statehood, but in January 1864 they rejected by a margin of 4-to-1 a Constitution that would have taxed mining at the same rate as other businesses.

Then in July 1864 a revised Constitution that changed mining taxes to “net proceeds” — allowing deduction of expenses — and capping the tax rate at 5 percent. It passed with a vote of 10,375 to 1,284.

Article 10 of the Nevada Constitution reads: “The legislature shall provide by law for a tax upon the net proceeds of all minerals, including oil, gas and other hydrocarbons, extracted in this state, at a rate not to exceed 5 percent of the net proceeds. No other tax may be imposed upon a mineral or its proceeds until the identity of the proceeds as such is lost.”

The provision takes into account that the value of minerals is depleted over time.

That is how much the residents of the territory, attracted to the region by mining and dependent upon mining for their livelihoods, feared the damage a meddling Legislature could do to the lifeblood of the state.

A yes vote on Question 2 on the November ballot would repeal that provision of the Constitution and allow the Legislature in 2015 to raise taxes on mining, though it would take a two-thirds vote of both houses of the Legislature.

If lawmakers are willing to give away tax breaks worth $1.3 billion to attract Tesla Motors to build a battery manufacturing plant here instead of another state, imagine what they might be willing to try to extract from a captive industry  — one that can’t move its gold mine to Texas.

Mining is why Nevada exists and why vast portions of rural Nevada survive today. The mining industry directly employs more than 10,000 workers and provides an estimated 14,000 jobs for those who are vendors and service providers for mining. Mining jobs average $88,000 in wages. Mining pays more than $400 million a year in state and local taxes.

Nevada Mining Association President Tim Crowley scoffs at those who claim mining fails to pay its fair share in taxes. “Mining pays every tax every other business pays,” he says. The net proceeds tax is over and above the sales, business, payroll, property taxes on facilities and other taxes other industries pay.

The net proceeds tax revenue has fallen in recent years because the price of gold has fallen, just as property tax revenues are down due to the decline in value of homes and land.

Crowley has pointed out that lawmakers can and have increased the tax revenue from mining by simply reducing the number of deductions allowed for mining expenses.

This measure would allow the Legislature to pluck the golden goose and roast it on a spit.

24-foot diameter mineshaft at Pumpkin Hollow

24-foot diameter mineshaft at Pumpkin Hollow copper mine