Corporate Propaganda Research Archive
Everybody knows the dice
brutal law of unintended consequences
Between the devil and the deep Joe Neal
Barbwire by Barbano / Expanded from the 2-28-2013 Daily Sparks Tribune
Updated 3-9-2013>Petition Pandering and Pondering
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The Nevada teachers' business tax petition is poised to perpetrate the damndest legal scramble the state has ever seen.
The legislature has
until March 15 to pass the measure verbatim or it advances to the November 2014
For more than 100 years, petitions have been deemed passed if they win a simple majority of those voting on the issue.
It ain't necessarily
In 1980, Sen. Joe Neal, D-N. Las Vegas, ordered the Legislative Counsel Bureau to research a constitutional anomaly.
The result was astounding.
Neal, who taught constitutional law at Community College of Southern Nevada, caught a language quirk that also affected three other states, all of which fixed it before it became a problem.
The crux is that Nevada's Constitution mandates that in order to win approval, ballot questions must gain a majority of all the voters voting in an election, not just between those casting votes on individual issues.
A successful action can be brought before the Nevada Supreme Court upholding Sen. Neal's very well-grounded scholarship.
If the court rules that Neal has a point, Nevada's union-busting Right-to-Work-for-Less (1952) and term limits (1996-98) laws become constitutionally invalid.
So do more than 100
The research will be linked to the web edition of this column at NevadaLabor.com.
It includes letters from Legislative Counsel Bureau Research Director Andrew Grose with case citations and examples of petitions invalidated by these criteria.
You may also read the 1980 letters from Nevada Secretary of State Bill Swackhamer and Legislative Counsel Frank Daykin.
Ole Swack's non-response conveyed Atty. Gen. Richard Bryan's non-response.
Bottom line: Too
hot to handle. Don't bother us. Please go away.
Alas and alack, the Las Vegas MGM Grand Hotel-Casino caught fire in 1980 and Sen. Neal got sidetracked getting the 1981 high-rise sprinkler law passed over the objections of the gambling industry.
The petition issue languished until he found this research a few weeks ago and sent an inch-thick file to me.
He included a transcript from Nevada's 1864 Second Constitutional Convention in which the framers state their intent that intiatives and referenda should pass only by winning a majority of all voters voting in an election. Read it yourself.
On 8 March 1939, Nevada Attorney General Gray Mashburn sent a letter to Secretary of State Malcolm McEachin that the issue should be taken to the Supreme Court.
We're still waiting
for action on Mashburn's legal
A recent Nevada Retail Association poll showed 58 percent of Nevadans in favor of the teacher's tax petition. This is nothing new in a supposedly taxophobic state.
Polls taken every two years by the Alan Bible Research Center at the University of Nevada-Reno consistently showed an overwhelming three of four Nevadans favoring an increase in the gross gaming tax. Dancing to the gamblers' tune, the legislature took care of those pesky facts by defunding the poll.
The teachers petition
will probably win but only narrowly.
Should it do so, tax-avoiding corporations will have only one recourse: take it to court to blow it out under Neal's criteria.
If the Supremes uphold the current system, Nevada schools get an extra $800 million a year.
If the blackrobes opt
in favor of Sen. Neal's rock-solid research and strike down the petition because
it failed to convince more than 50 percent of all voters, more than 100 Nevada
laws get invalidated. (Read
the Andy Grose memo to Neal.)
Either way, average citizens greatly benefit. A positive Catch22.
Joe Neal would not have it any other way.
MINDS THINK ALIKE DEPT. > In his biennial
address to a joint session of the Nevada Legislature, U.S. Senate Majority
Leader Harry Reid, D-Searchlight, called on lawmakers to repeal the state's
term limit law.
UNTO CÉSAR. César
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I broke a bushel of major stories last year which the above lead item will very probably top. Blowing out more than a century of Nevada law in one swell foop doesn't happen every day.
Turn on, tune in and
tell a friend.
Be well. Raise hell.
Andrew Barbano is a 44-year Nevadan, chair of the Nevada César Chávez Committee, producer of Nevada's annual César Chávez Day celebration, first vice-president and political action chair of the Reno-Sparks NAACP, labor/consumer/civil rights advocate, member of Communications Workers of America Local 9413/AFL-CIO and editor of NevadaLabor.com and JoeNeal.org. As always, his opinions are strictly his own. Check local listings for other Nevada cable systems. E-mail email@example.com. Barbwire by Barbano has originated in the Daily Sparks Tribune since 1988.
Ignorance of the law is no excuse
"It is clear in my judgment that the amendment process in our constitution requires a majority of voters in an election...To adopt a contrary view...is to permit a constitutional provision to be added by a minority of voters.
"An example: If you had an election where a hundred thousand people voted for two candidates for governor and three voted on a constitutional question, two for and one against, the question would become part of our constitution with just two people voting for it. It was never intended by the framers." Letter from State Sen. Joe Neal, D-N. Las Vegas, to Secretary of State William J. Swackhamer, 2 April 1980. Neal's example is the same as that used in discussion of the provision by the framers of the state constitution in 1864.
Sen. Neal's research calls into question large swaths of Nevada law, some of which has been on the books for more than a century.
The crux is that Nevada's Constitution mandates that in order to win approval, ballot questions must gain a majority of all the voters voting in an election, not just among those casting votes on individual issues.
Here are summaries of the content with links to the documents at Sen. Neal's website.
THE SMOKING GUN > Sen. Neal's letter of 2 April 1980 to Secretary of State William Swackhamer challenging most of the initiatives and referenda passed since Nevada's admission to the union. It includes a list of legal citations, some of which may be found in the following titles. (4280 ltr)
LEGISLATIVE LAWYER MEMOS > Two letters from Legislative Counsel Bureau Research Director Andrew Grose with case citations and examples of petitions invalidated by these criteria. (1980 lcb)
TELL PONTIUS PILATE TO PASS THE TOWELS > April, 1980, letters from Nevada Secretary of State Swackhamer and Legislative Counsel Frank Daykin. Ole Swack's non-response conveys Atty. Gen. Richard Bryan's non-response. The Daykinism advice falls somewhere between non-sequitur and incomprehensible.
Translation: Don't bother us. Too hot to handle. Please go away. (4380 dayswack)
Alas and alack, the Las Vegas MGM Grand Hotel-Casino caught fire and Sen. Neal was sidetracked getting the 1981 high-rise sprinkler law passed over the objections of the gambling industry.
This issue languished until he found this research a few weeks ago and sent an inch-thick file to me. Sen. Neal never forgets.
WHAT THE HELL WERE THEY THINKING? PRETTY DAMNED WELL, IT SEEMS > Transcript from Nevada's Second Constitutional Convention in 1864, underlined emphasis added and referenced in Sen. Neal's 2 April 1980 letter to Secretary of State Swack. There is no doubt that the framers intended that petitions must win a majority of all voters voting in the entire election, not just on the ballot question itself. (Convention)
THE CONTROLLING LAW > Statutes of Nevada 1901: "No. XI. Senate Joint and Concurrent Resolution amending the Constitution of the State of Nevada by adding an article thereto." (Approved 19 March 1901.)
Section 2 of the latter reads: "When a majority of the electors voting at a State election shall by their votes signify approval of a law or resolution such law or resolution shall stand as the law of the State and shall not be overruled, annulled, set aside, suspended, or in any way made inoperative except by the direct vote of the people. When such majority shall so signify disapproval the law or resolution so disapproved shall be void and of no effect."
Sen. Neal says this remains the controlling statute. The state constitution regarding initiative and referendum was amended at the polls by adding Article 19 in 1904 (Sections 1 and 2) and Section 3 in 1912.
However, neither gained a majority of all voters voting in either election, so 1901 still rules and it unequivocally mandates a majority of all voters voting. (1901 SN)
Adios right-to-work-for-less, term limits and whole bunch else.
This house is condemned. Tear it down and start over.
1980 WAS INSTANT REPLAY > The 8 March 1939 opinion of Nevada Attorney General Gray Mashburn states that the issue should be taken to the Supreme Court by the Nevada Secretary of State.
We're still waiting. (1939)
Like his timid predecessors (Malcolm McEachin-1939 and Swack-1980), I rather doubt that current SOS Ross Miller II will have an appetite for something important rather than facilitating voter suppression in order to suck up to righteous right-wing moonhowlers.
Any and all comments welcome. I will forward the best to Sen. Neal.
Be well. Raise hell.
...and more ammo...
Petition pondering & pandering:We Don't Need No Education
Just Say No, a Nevada tradition
CLINGING TO THE LEDGE>Do the Nancy Reagan thing
Just say no and invalidate term limits and right-to-work-for-less in the process
Barbwire by Barbano / Special Online Abstinence Edition / 3-5-2013
An edited and updated version appeared in the 3-7-2013 Daily Sparks Tribune
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by Colin Gordon
Economic Policy Institute / 6-5-2012
Used in journalist Mark Robison's extensive Hard Labor: Nevada unions tout role in helping workers, firms, economy (Sunday 2 Sept. 2012 Reno Gazette-Journal, page one, Reno Rebirth section of the print edition). Union men Jim Burrell, Paul McKenzie and Guy Louis Rocha did the movement proud. Not included in the RGJ online edition.
Nevada Press Assn. Better Newspaper Contest
HAT TRICK: Barbwire takes first place three years in a row.
The campaign against forcibly-paid newspaper obituaries
And they wonder why the newspaper business is dying?
The Dean's List
The Dean of Reno Bloggers could very well be Andrew Barbano, self-described "fighter of public demons," who started putting his "Barbwire" columns online in 1996 and now runs 10 sites.
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Copyright © 1982-2013 Andrew Barbano
Andrew Barbano is a 44-year Nevadan, editor of NevadaLabor.com and JoeNeal.org; and former chair of the City of Reno's Citizens Cable Compliance Committee, He is producer of Nevada's annual César Chávez Day celebration and serves as first vice-president, political action chair and webmaster of the Reno-Sparks NAACP. As always, his opinions are strictly his own. E-mail firstname.lastname@example.org.
Barbwire by Barbano moved to the Daily Sparks (Nev.) Tribune on Aug. 12, 1988, and has originated in them parts ever since.
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