Republicans protesting the Nevada Supreme Court decision setting aside the two-thirds majority required to raise taxes have filed a petition asking the Ninth Circuit Court of Appeals to reconsider their case.
A panel of the appellate court in San Francisco threw out the lawsuit demanding reversal of the state court decision saying there was no actual harm in a legal sense because the Nevada Legislature reached the two-thirds majority in both houses to finally pass the $833 million, two-year tax plan.
Attorney John Eastman filed for another hearing Tuesday arguing there was actual injury and that the simple majority ruling helped push the final vote needed to meet the two thirds standard.
"At the very least, a remand is warranted for an evidentiary hearing on the issue of whether the Legislator Plaintiffs suffered a cognizable injury because of the conceded change in the legislative dynamic that resulted from the unlawful vote dilution," Eastman argued.
The lawsuit seeks to overturn the opinion of the Nevada Supreme Court which made the state constitutional provision requiring two-thirds to increase taxes subordinate to the constitutional provision requiring the Legislature and governor fund public education.
Eastman pointed out that the Assembly used the simple majority vote permitted by the Supreme Court decision to pass a tax plan. That bill failed in the Nevada Senate but Eastman argues it provided leverage to pass the final tax plan.
He said the simple-majority vote "altered the legislative dynamic in concrete ways, forcing the legislator plaintiffs to choose between the bill that was ultimately adopted by a two-thirds vote or an even more onerous tax package that legislative leadership threatened to adopt with a simple majority."
He said Assemblyman John Marvel, R-Battle Mountain, who finally switched his vote and allowed the tax plan to reach two-thirds, alluded to that dynamic during the floor debate on the final bill.
The petition asks for a panel of the Ninth Circuit to rehear the case. If rejected, Eastman can still ask for a review by the full Ninth Circuit Court in San Francisco and, if that fails, take the issue to the U.S. Supreme Court.
Contact Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.