notice of general electiona - elko county, nevada · 2019. 6. 10. · disimone, eugene “gino”...

Please publish October 6, 13, 20 1

NOTICE OF GENERAL ELECTION I, Win Smith, Elko County Clerk, do hereby give notice of the General Election to

be held on November 2, 2010. Please take notice that the Polling Places for Elko County are as follows: Elko 1 through 14, Ryndon 32 Elko Civic Auditorium 700 Moren Way, Elko, NV Carlin 15 and 16 Carlin City Hall,

101 S 8th St. Carlin, NV Wells 18 and 19 Wells Justice Court,

1510 Lake Ave Wells, NV West Wendover 20 and 21 West Wendover Library,

590 Camper Dr West Wendover, NV Spring Creek 22,23,24,25, Spring Creek Middle School

40 & 41 Multipurpose Building 711 Boyd Rd Spring Creek NV

Lamoille 26 Lamoille Old School House Lamoille, NV and Jiggs Community Hall

Mound Valley 27 Jiggs Community Hall Jiggs, NV

The following precincts are mailing precincts: 17 (rural Carlin), 28 (Jack Creek), 29 (Owyhee), 30 (Mountain City), 31 (North Fork), 33 (Mary�s River), 34 (Starr Valley), 35 (Ruby Valley), 36 (Clover Valley), 37 (Oasis/Winecup), 38 (Jackpot) and 39 (Montello). EARLY VOTING Early voting is available at the Elko Convention Center, 700 Moren Way, Elko. Hours for early voting are as follows:

October 16 – (Saturday) 10:00 am to 2:00 pm October 18 -- 22 (Mon - Fri) 8:00 am to 6:00 pm October 23 -- (Saturday) 10:00 am to 2:00 pm October 25 -- 28 (Mon - Thurs) 8:00 am to 6:00 pm October 29 – Fri, Nevada Day 10:00 am to 2:00 pm

Early Voting outside Elko will be in Carlin, Wells and West Wendover for limited times. For more information call the Clerk’s Office at 775-753-4600. ELECTION DAY: November 2, 2010, polls will remain open from 7:00 am - 7:00 pm Applications for absentee ballots may be requested until October 26, 2010, in the Elko County Clerk’s Office or you may fill out the Absentee Ballot form on our website at www.elkocountynv.net and turn it in at the Elko County Clerk’s office.


CANDIDATES and QUESTIONS FOR THE GENERAL ELECTION

NOVEMBER 2, 2010

PARTISAN OFFICES

FEDERAL U. S. SENATE 6 year term Angle, Sharron REP Ashjian, Scott TPN Fasano, Tim IAP Haines, Michael L. IND Holland, Jesse IND Reeves, Jeffrey C. IND Reid, Harry DEM Stand, Wil IND None of These Candidates

REPRESENTATIVE IN CONGRESS, DISTRICT 2 2 year term Best, Russell IAP Heller, Dean REP Price, Nancy DEM

STATE GOVERNOR 4 year term Curtis, David Scott GRN DiSimone, Eugene “Gino” IND Fitzgibbons, Floyd IAP Honig, Aaron Y. IND Lampitt Jr., Arthur Forest LIB Reid, Rory DEM Sandoval, Brian REP None of These Candidates LIEUTENANT GOVERNOR 4 year term Fitzgibbons, Ryan IAP Krolicki, Brian K. REP Sferrazza, Jessica DEM None of These Candidates


SECRETARY OF STATE 4 year term Lauer, Rob REP Miller, Ross DEM Wagner, John IAP None of These Candidates TREASURER 4 year term Hawkins, Mike IAP Marshall, Kate DEM Martin, Steven E. REP None of These Candidates CONTROLLER 4 year term Herr, Barry REP Markowitz, Warren IAP Wallin, Kim R. DEM None of These Candidates ATTORNEY GENERAL 4 year term Barrick, Travis REP Cortez Masto, Catherine DEM Hansen, Joel F. IAP None of These Candidates STATE ASSEMBLY, DISTRICT 33 2 year term Ellison, John REP Hansen, Janine IAP McFarlane, Michael DEM

COUNTY ASSESSOR 4 year term Russell, Katrinka S. REP Smith, Michael Lee IAP CLERK 4 year term Fosmo, Carol REP McKnight, William R. IAP


COMMISSIONER, DISTRICT 2 4 year term Everhart, John IAP Myers, Charlie REP COMMISSIONER, DISTRICT 4 4 year term King, Allison IAP Williams, R. Jeff REP DISTRICT ATTORNEY 4 year term Torvinen, Mark REP PUBLIC ADMINISTRATOR 4 year term Jenkins, Janyce E. REP Jenkins, Kay Dawn IAP RECORDER 4 year term Roach, Natalie REP Smales, D. Mike REP TREASURER 4 year term Erickson, Rebecca “Becky” REP

NONPARTISAN OFFICES

STATE

SUPREME COURT JUSTICE, SEAT A 6 year term Hardesty, James W. NP None of These Candidates SUPREME COURT JUSTICE, SEAT E 6 year term Parraguirre, Ronald D. NP None of These Candidates UNIVERSITY BOARD OF REGENTS, DISTRICT 8 6 year term Melcher, Kevin C. NP Puccinelli, Margaret NP


COUNTY SHERIFF 4 year term Pitts, James NP Wellington, Ken NP

DISTRICT

ELKO CIVIC AUDITORIUM, SEAT B 4 year term Abeyta, Ruben NP Valline, Todd NP ELKO TV BOARD, SEAT A 4 year term D’Asto, Doris B. NP Gardner, Paul NP ELKO TV BOARD, SEAT B 4 year term LeBarts, Kent NP Myers Jr., Charlie NP ELKO TV BOARD, SEAT C 4 year term Guitar, Steven NP Gunter, Tyler R. NP ELKO TV BOARD, SEAT D 2 year term Elliott, James E. NP Karr, Juanita NP

CITY OF CARLIN

MAYOR 4 year term Eklund, Clifford NP Litchfield, Lincoln NP CITY COUNCIL 4 year term, vote for two Feasel, Steve NP Skinner, Donnetta NP Trujillo, David J. NP


CITY OF WELLS

MAYOR 4 year term Brodsho, Rick NP Huff, Kenny NP CITY COUNCIL 4 year term, vote for one Berry, Dean NP Hewett, Bryan D. NP Holford, Matt NP Madison, Terry L. NP Walz, Layla NP

CITY OF WEST WENDOVER CITY COUNCIL, SEATS 1, 2, and 5 4 year term, vote for three Bellio, Beth NP Briggs, Roy NP Carter, Emily NP Carter, Jimmy D. NP Christie, Jamey NP Gutierrez, Izzy NP LaCombe Jr, Buddy NP Pereira, Tony NP Rodd, Paul NP Rowley II, Alan NP Weyland, Scott G. NP


QUESTION NO. 1

Amendment to the Nevada Constitution

Senate Joint Resolution No. 2 of the 74th Session

CONDENSATION (Ballot Question)

Shall the Nevada Constitution be amended to provide for the appointment of Supreme Court justices and District Court judges by the Governor for their initial terms from lists of candidates nominated by the Commission on Judicial Selection, with subsequent retention of those justices and judges after independent performance evaluations and voter approval?

Yes No

EXPLANATION Currently, the Nevada Constitution provides for the election of Supreme Court justices and District Court judges in Nevada to 6-year terms. When a vacancy occurs between elections, the Governor appoints a justice or judge from a list of candidates recommended by the Commission on Judicial Selection. The Commission consists of the Chief Justice of the Nevada Supreme Court and equal numbers of attorneys and non-attorneys. The proposed amendment to the Nevada Constitution would provide for the initial appointment of all Supreme Court justices and District Court judges through the same process currently used to fill midterm vacancies. When any vacancy occurs, the Commission on Judicial Selection would nominate a list of candidates based on their experience and qualifications, and provide the nominees’ names to the Governor and the public. The Governor would then appoint one of the nominees. After being appointed by the Governor, justices and judges will initially serve terms that expire in January following the next general election which occurs at least 12 months after appointment. Justices and judges seeking another term would be evaluated based on their record by the newly created Commission on Judicial Performance, which would consist of the Chief Justice of the Nevada Supreme Court and equal numbers of attorneys and non-attorneys. A summary of the Commission’s evaluation would be made available to the public at least 6 weeks before the general election. The names of all justices and judges seeking another term would appear on the ballot, and voters would decide whether justices and judges should serve another term. Justices and judges need 55 percent of the vote to be retained. If retained by the voters, a justice or judge will serve a 6-year term and will be subject to another evaluation and election at the end of each subsequent 6-year term if he or she wishes to serve another term. If a justice or judge does not declare his or her candidacy or receives less than 55 percent of the votes cast at the election, the vacancy is again filled through the appointment process. This question also increases the number of members on the Commission on Judicial Selection by adding an additional attorney and a non-attorney and provides for the membership of the new Commission on Judicial Performance.


A “Yes” vote would amend the language in the Nevada Constitution to allow for the appointment of Supreme Court justices and District Court judges by the Governor for their initial terms from lists of candidates nominated by the Commission on Judicial Selection, with subsequent retention of those justices and judges after independent performance evaluations by the Commission on Judicial Performance and voter approval. A “No” vote would retain the existing language in the Nevada Constitution that Supreme Court justices and District Court judges in Nevada must be elected except for those who are first appointed to fill vacancies and then stand for election.

ARGUMENTS FOR PASSAGE

A fair and independent judiciary is essential to maintaining the public trust and confidence in Nevada’s court system and preserving the rights of all citizens. Justices and judges are not intended to be politicians, yet they are required to campaign and engage in fundraising. The extent to which they are able to impartially interpret and apply laws depends upon their ability to remain free from political pressure and outside influence from campaign contributors. In recent years, judicial campaigns have been characterized by increased fundraising and spending. Thus, elections may be based on a candidate’s ability to raise funds rather than the merits of the candidate’s legal career or judicial performance. Justices and judges in the State of Nevada are allowed to solicit money directly from campaign contributors and are not required to recuse themselves or give notice when a campaign contributor appears before them in court. Typical contributors to judicial campaigns include attorneys, law firms, litigants, potential litigants, and special interest groups who may have pending legal cases. In addition, justices and judges who are subject to political campaigns cannot focus their full attention on their judicial responsibilities. The appointment and retention of justices and judges based on merit rather than the ability to mount a successful political campaign would remove them from partisan politics while maintaining the people’s ability to vote whether to retain or remove a justice or judge. Further, merit selection will give full consideration to the ability, character, and qualifications of a judicial candidate before his or her name is placed on the ballot for retention, and will allow voters to focus on the candidate’s judicial record when casting their ballots. At present, several states across the nation have adopted a nominating plan like this one for the appointment of judges to initial terms on the bench, and many also hold retention elections at the expiration of a judge’s term. In 1976, the people of Nevada approved an amendment to the Nevada Constitution that provides for the Commission on Judicial Selection to make recommendations for filling midterm vacancies at the Supreme Court and District Court levels. Thus, appointments to the bench are not new in Nevada and already involve a rigorous selection process based on merit.


ARGUMENTS AGAINST PASSAGE

The ability of the public to elect justices and judges in Nevada is an important aspect of democracy. Providing that candidates for justice or judge must be nominated by the Commission on Judicial Selection and appointed by the Governor does not ensure judicial competence and integrity. Passage of this question would eliminate the right of voters to initially elect justices and judges. Appointment removes an essential level of public scrutiny and is an undemocratic way to select justices and judges that ignores the will of the people. This question assumes an uninformed electorate and presumes that a select group of individuals are better qualified to choose those who will sit on the bench. It also promotes a system in which those in the legal profession can recommend colleagues to the highest positions of the judicial branch. Qualified candidates may be excluded from consideration by the Commission on Judicial Selection for arbitrary reasons. Similarly, justices and judges may be unfairly evaluated by the Commission on Judicial Performance. This question will not eliminate the potential for judicial corruption and political influence. Several states have addressed this concern in other ways. For example, some states prohibit judicial candidates from accepting campaign contributions and others require recusal from cases in which a party or their attorneys have contributed to the justice’s or judge’s campaign. These alternatives would solve the problem of political campaigning and fundraising without eliminating the right of the people to elect their judiciary. Finally, Rule 4.2 of the Nevada Code of Judicial Conduct currently provides that justices and judges cannot raise campaign funds if they run for election unopposed.

FISCAL NOTE Financial Impact – Cannot Be Determined The provisions of this question would amend Article 6, Section 20 of the Nevada Constitution to increase the membership on the Commission on Judicial Selection from seven to nine members, and require that the Commission select three nominees for a vacancy occurring for any reason in the Supreme Court or the District Courts throughout the State. Based on information provided by the Administrative Office of the Courts, enactment of these provisions would increase the workload of the Commission, requiring additional meeting preparation, travel expenses, room rental, and staff costs for each meeting of the Commission necessary to create the list of candidates for a judicial vacancy, thereby resulting in a financial impact upon the State. However, the timing and frequency of future vacancies that would require meetings of the Commission is not known, and the number of meetings that would be necessary to fill any vacancy on the Supreme Court or in a District Court cannot be determined. Thus, the actual financial effect upon the State cannot be determined with any reasonable degree of certainty. The provisions of this question would also amend Article 6 of the Nevada Constitution by adding a new section, designated Section 22, which would create a Commission on Judicial Performance as a new entity responsible for evaluating any Supreme Court Justice or District Court judge who wishes to seek another term through a retention election. Based on information received by the


Administrative Office of the Courts, enactment of these provisions would require the Commission on Judicial Performance to develop and implement specific evaluation criteria to be used by the Commission to perform its specified duties. However, the specific evaluation criteria that will be established for use by the Commission and the number of judges and justices who may wish to seek retention, if this question is approved, cannot be determined. Thus, the specific financial impact upon the State or local government or upon individual taxpayers cannot be determined at this time. Under current law, justices of the Nevada Supreme Court and judges of the District Courts of the State are elected by popular vote at a general or special election. The provisions of the constitutional amendment would eliminate the election of Supreme Court justices and District Court judges when there is a vacancy and would require retention elections for any judge or justice who wishes to retain his or her seat for another term. Based on information received from the Office of the Secretary of State, these provisions would have no financial impact upon the State or local government.

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FULL TEXT OF MEASURE Senate Joint Resolution No. 2 of the 74th Session–Senators Raggio, Hardy, Care, Coffin, Carlton, Amodei,

Mathews, Nolan, Titus and Townsend

FILE NUMBER 87 SENATE JOINT RESOLUTION—Proposing to amend the Nevada Constitution to provide for the initial

appointment by the Governor of justices and judges and any subsequent retention of those justices and judges by election.

Legislative Counsel’s Digest: This resolution amends the Nevada Constitution, which currently provides for the popular election of justices of the Supreme Court and judges of the district court, to provide for: (1) the initial appointment by the Governor of justices and judges, from candidates recommended by the Commission on Judicial Selection; and (2) any subsequent retention of those justices and judges by approval of a ballot question concerning their retention. (Nev. Const. Art. 6, §§ 3, 5) Under this resolution, if a vacancy occurs in the Supreme Court or a district court for any reason, the Governor appoints a justice or judge from candidates selected by the Commission on Judicial Selection, and the initial term of that justice or judge expires on the first Monday of January following the general election occurring at least 12 months after the justice or judge is appointed. Thereafter, if the justice or judge wishes to serve another term, he must declare his candidacy for a retention election. If 55 percent or more of the votes cast are in favor of the retention of the justice or judge, he will then serve a 6-year term and must run in a retention election if he wishes to serve another 6-year term. If the justice or judge does not declare his candidacy for the retention election or if less than 55 percent of the votes cast are in favor of his retention, a vacancy is created at the end of his term which must be filled by appointment. In addition, this resolution amends the Nevada Constitution to require each justice or judge who has declared his candidacy for a retention election to undergo a review of his performance as a justice or judge. This resolution creates the Commission on Judicial Performance and requires the Commission to perform these reviews. The review of each justice or judge must consist of a review of the record of the justice or judge and at least one interview of the justice or judge. At the conclusion of this review, the Commission must prepare and release to the public a report containing information about the review and a recommendation on the question of whether the justice or judge should be retained. RESOLVED BY THE SENATE AND ASSEMBLY OF THE STATE OF NEVADA, JOINTLY, That a new section, designated Section 22, be added to Article 6 of the Nevada Constitution to read as follows:

Sec. 22. 1. Commencing with a term of office that expires on or after December 31, 2011, each justice of the Supreme Court, judge of the court of appeals, if established by the Legislature, or judge of the district court who desires to succeed himself must, on or before July 1 next preceding the expiration of his term of office, declare his candidacy in the manner provided by law. With respect to each justice or judge who so declares, the question must be presented at the next general election, in a form provided by law, whether that justice or judge shall succeed himself. 2. If 55 percent or more of the votes cast on the question are cast in favor of the justice or judge succeeding himself, the justice or judge shall succeed himself. The term of office of each justice or judge who succeeds himself is 6 years, and that term begins on the first Monday of January next following the general election at which the justice or judge was chosen to succeed himself. 3. If a justice or judge does not declare his candidacy, or if less than 55 percent of the votes cast on the question are cast in favor of the justice or judge succeeding himself, a vacancy is created at the expiration of his term which must be filled by appointment pursuant to Section 20 of this Article. 4. Each justice or judge who declares his candidacy to succeed himself must be reviewed by a commission on judicial performance. The review must consist of an examination of the record of the justice or judge and at least one interview of the justice or judge at which the commission discusses with the justice or judge any areas of performance in which the justice or judge needs to improve. At the conclusion of the review, the members of the commission must vote on the question of whether the commission recommends that the justice or judge succeed

himself. Not later than 6 weeks before the general election at which the question of whether the justice or judge shall succeed himself is presented, the commission shall prepare and release to the public a report which provides a summary of the findings of the commission, the recommendation of the commission on the question of whether the justice or judge should succeed himself, the rationale for the recommendation and the result of the vote by which the commission made the recommendation. The vote of an individual member of the commission must not be disclosed to the public.

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5. Each justice of the Supreme Court and judge of the court of appeals, if established by the Legislature, must be reviewed by the permanent Commission on Judicial Performance, composed of: (a) The Chief Justice or an associate justice designated by him, but if the Commission is reviewing a justice of the Supreme Court, the Chief Justice or associate justice designated to be a member of the Commission is disqualified and the other members of the Commission shall select a judge of the district court to take the place of the disqualified member of the Commission for the sole purpose of reviewing justices of the Supreme Court; (b) Two members of the State Bar of Nevada, a public corporation created by statute, appointed by its Board of Governors; and (c) Two persons, not members of the legal profession, appointed by the Governor. 6. Each judge of the district court must be reviewed by a temporary commission on judicial performance, composed of: (a) The permanent Commission on Judicial Performance; (b) Two members of the State Bar of Nevada resident in the judicial district of the judge being reviewed, appointed by the Board of Governors of the State Bar of Nevada; and (c) Two residents of the judicial district of the judge being reviewed, not members of the legal profession, appointed by the Governor. 7. If at any time the State Bar of Nevada ceases to exist as a public corporation or ceases to include all attorneys admitted to practice before the courts of this State, the Legislature shall provide by law, or if it fails to do so the Supreme Court shall provide by rule, for the appointment of attorneys at law to the positions designated in this Section to be occupied by members of the State Bar of Nevada. 8. The term of office of each appointive member of the permanent Commission, except the first members, is 4 years. Each appointing authority shall appoint one of the members first appointed for a term of 2 years. If a vacancy occurs, the appointing authority shall fill the vacancy for the unexpired term. The additional members of a temporary commission must be appointed when a review is required, and their terms expire when the review has been completed. 9. An appointing authority shall not appoint to the permanent Commission more than: (a) One resident of any county. (b) One member of the same political party. No member of the permanent Commission may be a member of a commission on judicial selection or the Commission on Judicial Discipline.

And be it further RESOLVED, That Section 3 of Article 6 of the Nevada Constitution be amended to read as follows:

[Sec: 3. The justices of the Supreme Court, shall be elected by the qualified electors of the State at the general election, and shall hold office for the term of six years from and including the first Monday of January next succeeding their election; provided, that there shall be elected, at the first election under this Constitution, three justices of the Supreme Court who shall hold office from and including the first Monday of December A.D., eighteen hundred and sixty four, and continue in office thereafter, two, four and six years respectively, from and including the first Monday of January next suceeding [succeeding] their election. They shall meet as soon as practicable after their election and qualification, and at their first meeting shall determine by lot, the term of office each shall fill, and the justice drawing the shortest term shall be Chief Justice, and after the expiration of his term, the one having the next shortest term shall be Chief Justice, after which the senior justice in commission shall be Chief Justice; and in case the commission of any two or more of said justices shall bear the same date, they shall determine by lot, who shall be Chief Justice.] Sec. 3. The justice of the Supreme Court who is senior in commission shall be Chief Justice. If the commissions of any two or more justices bear the same date, they shall determine by lot who is Chief Justice.


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Sec. 5. The State is hereby divided into nine judicial districts of which the County of Storey shall constitute the First; The County of Ormsby the Second; the County of Lyon the Third; The County of Washoe the Fourth; The Counties of Nye and Churchill the Fifth; The County of Humboldt the Sixth; The County of Lander the Seventh; The County of Douglas the Eighth; and the County of Esmeralda the Ninth. The County of Roop shall be attached to the County of Washoe for judicial purposes until otherwise provided by law. The Legislature may, however, provide by law for an alteration in the boundaries or divisions of the districts herein prescribed, and also for increasing or diminishing the number of the judicial districts and judges therein. But no such change shall take effect, except in case of a vacancy, or the expiration of the term of an incumbent of the [office. At the first general election under this Constitution there shall be elected in each of the respective districts (except as in this Section hereafter otherwise provided) one district judge, who shall hold office from and including the first Monday of December A.D., eighteen hundred and sixty four and until the first Monday of January in the year eighteen hundred and sixty seven. After the said first election, there shall be elected at the general election which immediately precedes the expiration of the term of his predecessor, one district judge in each of the respective judicial districts (except in the First District as in this Section hereinafter provided.) The district judges shall be elected by the qualified electors of their respective districts, and shall hold office for the term of 6 years (excepting those elected at said first election) from and including the first Monday of January, next succeeding their election and qualification; provided, that the First Judicial District shall be entitled to, and shall have three district judges, who shall possess] office of district judge. In a judicial district with more than one district judge, each judge possesses co-extensive and concurrent jurisdiction, and [who shall be elected at the same times, in the same manner, and shall hold office for the like terms as herein prescribed, in relation to the judges in other judicial districts, any one of said] any of those judges may preside on the [empanneling [empaneling]] empaneling of grand juries and the presentment and trial on indictments [, under such rules and regulations as may be] in the manner prescribed by law.


Sec . [:] 15. The justices of the Supreme Court and district judges shall each receive for their services a compensation to be fixed by law and paid in the manner provided by law, which shall not be increased or diminished during the term for which they shall have been elected [,] or appointed, unless a vacancy occurs, in which case the successor of the former incumbent shall receive only such salary as may be provided by law at the time of his election or appointment; and provision shall be made by law for setting apart from each year’s revenue a sufficient amount of money, to pay such compensation.


Sec. 20. 1. When a vacancy occurs [before the expiration of any term of office] for any reason in the Supreme Court or the court of appeals, if established by the Legislature, or among the district judges, [the Governor shall appoint a justice or judge from among three nominees selected for such individual vacancy by] the Commission on Judicial Selection [.] shall select three nominees for the vacancy within 60 days after the vacancy occurs. The Commission shall provide the names of the three nominees to the Governor and the public. The Governor may: (a) Appoint a justice or judge from among the three nominees selected for the vacancy by the Commission on Judicial Selection; or (b) Reject all three nominees. 2. After the expiration of 30 days from the date on which the Commission on Judicial Selection has delivered to him its list of nominees for any vacancy, if the Governor has not appointed a justice or judge or rejected all the nominees, he shall make no other appointment to any public office until he has appointed a justice or judge from the list submitted. 3. If the Governor rejects all three nominees selected for the vacancy by the Commission on Judicial Selection, the Commission shall select three additional nominees for the vacancy within 60 days after the date of the rejection. The Commission shall provide the names of the three additional nominees to the Governor and the public. The Governor must appoint a justice or judge from among the three additional nominees selected for the vacancy by the Commission on Judicial Selection. 4. After the expiration of 30 days from the date on which the Commission on Judicial Selection has delivered to him its list of additional nominees for any vacancy, if the Governor has not made the appointment required by subsection 3, he shall make no other appointment to any public office

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until he has appointed a justice or judge from the list of additional nominees submitted by the Commission on Judicial Selection. 5. The initial term of office of any justice or judge [so] appointed pursuant to this Section expires on the first Monday of January following the [next general election. 3.] first general election that is held at least 12 calendar months after the date on which the appointment was made. 6. Each nomination for the Supreme Court shall be made by the permanent Commission, composed of: (a) The Chief Justice or an associate justice designated by him; (b) [Three] Four members of the State Bar of Nevada, a public corporation created by statute, appointed by its Board of Governors; and (c) [Three] Four persons, not members of the legal profession, appointed by the Governor. [4.] 7. Each nomination for the district court shall be made by a temporary commission composed of: (a) The permanent Commission; (b) [A member] Two members of the State Bar of Nevada resident in the judicial district in which the vacancy occurs, appointed by the Board of Governors of the State Bar of Nevada; and (c) [A resident of such] Two residents of that judicial district, not [a member] members of the legal profession, appointed by the Governor. [5.] 8. If at any time the State Bar of Nevada ceases to exist as a public corporation or ceases to include all attorneys admitted to practice before the courts of this State, the Legislature shall provide by law, or if it fails to do so the Supreme Court shall provide by rule, for the appointment of attorneys at law to the positions designated in this Section to be occupied by members of the State Bar of Nevada. [6.] 9. The term of office of each appointive member of the permanent Commission, except the first members, is 4 years. Each appointing authority shall appoint one of the members first appointed for a term of 2 years. If a vacancy occurs, the appointing authority shall fill the vacancy for the unexpired term. The additional members of a temporary commission shall be appointed when a vacancy occurs, and their terms shall expire when the nominations for such vacancy have been transmitted to the Governor. [7.] 10. An appointing authority shall not appoint to the permanent Commission more than: (a) One resident of any county. (b) Two members of the same political party. No member of the permanent Commission may be a member of a commission on judicial performance or the Commission on Judicial Discipline. [8. After the expiration of 30 days from the date on which the Commission on Judicial Selection has delivered to him its list of nominees for any vacancy, if the Governor has not made the appointment required by this Section, he shall make no other appointment to any public office until he has appointed a justice or judge from the list submitted. If a commission on judicial selection is established by another section of this Constitution to nominate persons to fill vacancies on the Supreme Court, such commission shall serve as the permanent Commission established by subsection 3 of this Section.]


Sec. 21. 1. A justice of the Supreme Court, a district judge, a justice of the peace or a municipal judge may, in addition to the provision of Article 7 for impeachment, be censured, retired, removed or otherwise disciplined by the Commission on Judicial Discipline. Pursuant to rules governing appeals adopted by the Supreme Court, a justice or judge may appeal from the action of the Commission to the Supreme Court, which may reverse such action or take any alternative action provided in this subsection. 2. The Commission is composed of: (a) Two justices or judges appointed by the Supreme Court; (b) Two members of the State Bar of Nevada, a public corporation created by statute, appointed by its Board of Governors; and (c) Three persons, not members of the legal profession, appointed by the Governor. The Commission shall elect a Chairman from among its three lay members. 3. If at any time the State Bar of Nevada ceases to exist as a public corporation or ceases to include all attorneys admitted to practice before the courts of this State, the Legislature shall provide by law, or

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if it fails to do so the Supreme Court shall provide by rule, for the appointment of attorneys at law to the positions designated in this Section to be occupied by members of the State Bar of Nevada. 4. The term of office of each appointive member of the Commission, except the first members, is 4 years. Each appointing authority shall appoint one of the members first appointed for a term of 2 years. If a vacancy occurs, the appointing authority shall fill the vacancy for the unexpired term. An appointing authority shall not appoint more than one resident of any county. The Governor shall not appoint more than two members of the same political party. No member may be a member of a commission on judicial performance or a commission on judicial selection. 5. The Legislature shall establish: (a) In addition to censure, retirement and removal, the other forms of disciplinary action that the Commission may impose; (b) The grounds for censure and other disciplinary action that the Commission may impose, including, but not limited to, violations of the provisions of the Code of Judicial Conduct; (c) The standards for the investigation of matters relating to the fitness of a justice or judge; and (d) The confidentiality or nonconfidentiality, as appropriate, of proceedings before the Commission, except that, in any event, a decision to censure, retire or remove a justice or judge must be made public. 6. The Supreme Court shall adopt a Code of Judicial Conduct. 7. The Commission shall adopt rules of procedure for the conduct of its hearings and any other procedural rules it deems necessary to carry out its duties. 8. No justice or judge may by virtue of this Section be: (a) Removed except for willful misconduct, willful or persistent failure to perform the duties of his office or habitual intemperance; or (b) Retired except for advanced age which interferes with the proper performance of his judicial duties, or for mental or physical disability which prevents the proper performance of his judicial duties and which is likely to be permanent in nature. 9. Any matter relating to the fitness of a justice or judge may be brought to the attention of the Commission by any person or on the motion of the Commission. The Commission shall, after preliminary investigation, dismiss the matter or order a hearing to be held before it. If a hearing is ordered, a statement of the matter shall be served upon the justice or judge against whom the proceeding is brought. The Commission in its discretion may suspend a justice or judge from the exercise of his office pending the determination of the proceedings before the Commission. Any justice or judge whose removal is sought is liable to indictment and punishment according to law. A justice or judge retired for disability in accordance with this Section is entitled thereafter to receive such compensation as the Legislature may provide. 10. If a proceeding is brought against a justice of the Supreme Court, no justice of the Supreme Court may sit on the Commission for that proceeding. If a proceeding is brought against a district judge, no district judge from the same judicial district may sit on the Commission for that proceeding. If a proceeding is brought against a justice of the peace, no justice of the peace from the same township may sit on the Commission for that proceeding. If a proceeding is brought against a municipal judge, no municipal judge from the same city may sit on the Commission for that proceeding. If an appeal is taken from an action of the Commission to the Supreme Court, any justice who sat on the Commission for that proceeding is disqualified from participating in the consideration or decision of the appeal. When any member of the Commission is disqualified by this subsection, the Supreme Court shall appoint a substitute from among the eligible judges. 11. The Commission may: (a) Designate for each hearing an attorney or attorneys at law to act as counsel to conduct the proceeding; (b) Summon witnesses to appear and testify under oath and compel the production of books, papers, documents and records; (c) Grant immunity from prosecution or punishment when the Commission deems it necessary and proper in order to compel the giving of testimony under oath and the production of books, papers, documents and records; and (d) Exercise such further powers as the Legislature may from time to time confer upon it.

________

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QUESTION NO. 2


Senate Joint Resolution No. 9 of the 74th Session

CONDENSATION (Ballot Question)

Shall the Nevada Constitution be amended to allow for the establishment of an intermediate appellate court, that would have jurisdiction over appeals of certain civil and criminal cases arising from the district courts?

Yes No

EXPLANATION

The proposed amendment to the Nevada Constitution would authorize the Legislature to establish an intermediate appellate court, known as the Nevada Court of Appeals, that would have jurisdiction to hear certain appeals arising

from civil and criminal cases from the district courts. If the Legislature establishes the intermediate appellate court, the Nevada Supreme Court would be responsible for establishing the specific jurisdiction of the Court of Appeals and

for providing review of its decisions. Currently, language in Article 6 of the Nevada Constitution provides for the court system in Nevada, comprised of a Supreme Court, district courts, justices of the peace, and municipal courts. The Supreme Court is the only court in Nevada with jurisdiction to hear cases that are appealed from decisions rendered by the district courts. In addition, the Supreme Court has original jurisdiction over certain types of cases and administers the functions of the State Bar of Nevada and the judiciary. The proposed amendment does not create the Court of Appeals, but rather authorizes the Legislature to establish the Court. A “Yes” vote would authorize the Legislature to establish an intermediate appellate court. A “No” vote would retain the existing court system.

ARGUMENTS FOR PASSAGE

Increasing population and caseloads throughout Nevada’s court system support the establishment of an intermediate Court of Appeals. For several decades, Nevada was the fastest growing state in the nation and the number of cases in the court system increased at a similar rate. Although the pace of Nevada’s population growth has slowed, the State is still growing and the workload of its court

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system continues to grow. The number of judges in the district courts has increased in recent years in an effort to maintain the public’s timely access to justice. Nevada’s Supreme Court is the highest court in the State. It is one of the busiest courts in the nation and has already implemented technological and procedural improvements to accommodate caseload growth. It hears all appeals of civil and criminal cases originating in the district courts. However, the American Bar Association recommends that when the volume of appeals becomes so great that the Supreme Court cannot decide these cases at a desirable pace, an intermediate appellate court should be created. Nevada has reached that point. The new Court of Appeals will improve efficiency, minimize delay, maintain quality in the judicial process, ensure timeliness of decisions, provide the Supreme Court with the ability to focus on precedent-setting cases, and increase the number of written opinions that establish the State’s common law. Currently, Nevada is one of only 11 states and the District of Columbia that do not have an intermediate appellate court. Completion of the Regional Justice Center in Las Vegas would allow the Court of Appeals to share facilities and other existing resources with the Supreme Court. Therefore, the costs associated with establishing the Court of Appeals may be reduced since no new facilities may be necessary.

ARGUMENTS AGAINST PASSAGE Establishment of the new Nevada Court of Appeals would simply shift the increasing caseload from the Supreme Court to the Court of Appeals and would add another step to the process of litigation. Another level in the judicial system is not desirable, as it would potentially increase costs for litigants and add time to an already lengthy legal process. Establishment of the intermediate appellate court would require the State to allocate funds and resources to the court system that might otherwise be used for more essential purposes.

FISCAL NOTE

Financial Impact – Cannot Be Determined If this proposal to amend the Nevada Constitution is approved by voters, the Nevada Legislature would be authorized to establish an intermediate appellate court within this State. Approval of this proposal by the voters would have no direct or immediate financial impact upon the State and local governments or individual taxpayers, as the proposal authorizes, but does not require, the Legislature to establish an intermediate appellate court. If this proposal is approved by the voters and the Legislature chooses to establish an intermediate appellate court, there would be a financial impact upon the State and local governments. The provisions of the constitutional amendment specify the minimum number of judges that must make up the appellate court, but allows the Legislature to add additional appellate judges to the proposed

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court. The creation of an appellate court would require professional and administrative staff, in addition to other one-time and ongoing costs related to the operation of the appellate court. The Legislature would be responsible for setting the salaries of the judges and professional and administrative staff, as well as establishing the one-time and ongoing costs related to the operation of the court. Because it is not possible to determine the decisions the Legislature may make with respect to the establishment and operation of an intermediate appellate court, if the Legislature chooses to establish one, the specific financial impact upon the State and local government or individual taxpayers cannot be determined at this time. If this question is approved by voters and the Legislature considers legislation that would establish an intermediate appellate court, a fiscal note would be prepared based on the proposed legislation and made available at that time for consideration by the Legislature.

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FULL TEXT OF MEASURE

Senate Joint Resolution No. 9 of the 74th Session– Committee on Judiciary

FILE NUMBER 57

SENATE JOINT RESOLUTION—Proposing to amend the Nevada Constitution to allow the Legislature to

establish an intermediate appellate court. Legislative Counsel’s Digest: This resolution proposes an amendment to the Nevada Constitution to allow the Legislature to establish an intermediate appellate court, known as the court of appeals. If the Legislature establishes the court of appeals, the court must consist of at least three judges. The initial judges will be elected at the first general election after the creation of the court, and each judge will be elected to serve a term of 6 years. The court will have appellate jurisdiction in civil cases arising in district court and in criminal cases within the original jurisdiction of the district courts. The Nevada Supreme Court must fix the jurisdiction of the court and provide for the review of appeals decided by the court. RESOLVED BY THE SENATE AND ASSEMBLY OF THE STATE OF NEVADA, JOINTLY, That a new section, designated Section 3A, be added to Article 6 of the Nevada Constitution to read as follows:

Sec. 3A. 1. The Legislature may provide by law for the creation of a court of appeals. 2. If the Legislature creates a court of appeals pursuant to subsection 1, then: (a) The court of appeals must consist of three judges or such greater number as the Legislature may provide by law. If the number of judges is so increased, the Supreme Court may provide by rule for the assignment of any appeal to a panel of three judges for decision. (b) Except as otherwise provided in paragraph (c) and unless the Legislature provides for a term of fewer years pursuant to paragraph (d), each judge of the court of appeals must be elected by the qualified electors of this State at the general election for a term of 6 years beginning on the first Monday of January next after the election. The initial judges of the court of appeals must be elected by the qualified electors of this State at the first general election following the creation of the court of appeals. (c) Notwithstanding the provisions of paragraph (b), if, at the time that the Legislature establishes a court of appeals, this Article provides for the appointment of each justice of the Supreme Court and judge of the district court by the Governor, each judge of the court of appeals must be appointed by the Governor in the manner and for the term provided in Section 20 of this Article. (d) Except as otherwise provided in paragraph (e), if there is an increase in the number of judges of the court of appeals, each additional judge must be elected by the qualified electors of this State at the first general election following the increase for a term beginning on the first Monday of January next after the election. The Legislature shall provide for an initial term of 6 or fewer years for each additional judge so that the terms of all judges of the court of appeals expire at the same time. (e) Notwithstanding the provisions of paragraph (d), if, at the time that there is an increase in the number of judges of the court of appeals, this Article provides for the appointment of each justice of the Supreme Court and judge of the district court by the Governor, each additional judge must be appointed by the Governor in the manner and for the term provided in Section 20 of this Article. (f) The Supreme Court shall appoint one of the judges of the court of appeals to be chief judge. The chief judge serves a term of 4 years and may succeed himself. The chief judge may resign his position as chief judge without resigning from the court of appeals.


Section 1. The judicial power of this State [shall be] is vested in a court system, comprising a Supreme Court, a court of appeals, if established by the Legislature, district courts [,] and justices of the peace. The Legislature may also establish, as part of the system, courts for municipal purposes only in incorporated cities and towns.


Sec. 4. 1. The Supreme Court [shall] and the court of appeals, if established by the Legislature, have appellate jurisdiction in all civil cases arising in district courts, and also on questions of law alone

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in all criminal cases in which the offense charged is within the original jurisdiction of the district courts. If the Legislature establishes a court of appeals, the Supreme Court shall fix the jurisdiction of the court of appeals and provide for the review, where appropriate, of appeals decided by the court of appeals. The [court shall] Supreme Court and the court of appeals also have power to issue writs of mandamus, certiorari, prohibition, quo warranto [,] and habeas corpus and also all writs necessary or proper to the complete exercise of [its appellate] their jurisdiction. Each [of the justices shall have power to] justice of the Supreme Court and judge of the court of appeals may issue writs of habeas corpus to any part of the State, upon petition by, or on behalf of, any person held in actual custody [,] in this State and may make such writs returnable [, before himself] before the issuing justice or judge or the [Supreme Court,] court of which the justice or judge is a member, or before any district court in the State or [before] any judge of [said courts.] a district court. 2. In case of the disability or disqualification, for any cause, of [the Chief Justice or one of the associate justices] a justice of the Supreme Court, [or any two of them,] the Governor [is authorized and empowered to designate any] may designate a judge of the court of appeals or a district judge [or judges] to sit in the place [or places of such] of the disqualified or disabled justice . [or justices, and said judge or judges so designated shall receive their] The judge designated by the Governor is entitled to receive his actual expense of travel and otherwise while sitting in the Supreme Court. 3. In case of the disability or disqualification, for any cause, of a judge of the court of appeals, the Governor may designate a district judge to sit in the place of the disabled or disqualified judge. The judge that the Governor designates is entitled to receive his actual expense of travel and otherwise while sitting in the court of appeals.


Sec. 7. The times of holding the Supreme Court , the court of appeals, if established by the Legislature, and the district courts [shall] must be as fixed by law. The terms of the Supreme Court [shall] must be held at the seat of government unless the Legislature otherwise provides by law, except that the Supreme Court may hear oral argument at other places in the State. The terms of the court of appeals, if established by the Legislature, must be held at the place provided by law. The terms of the district courts [shall] must be held at the county seats of their respective counties unless the Legislature otherwise provides by law.


Sec. 8. 1. The Legislature shall determine the number of justices of the peace to be elected in each city and township of the State [,] and shall fix by law their qualifications, their terms of office and the limits of their civil and criminal jurisdiction, according to the amount in controversy, the nature of the case, the penalty provided [,] or any combination of these. 2. The provisions of this section affecting the number, qualifications, terms of office and jurisdiction of justices of the peace become effective on the first Monday of January, 1979. 3. The Legislature shall also prescribe by law the manner, and determine the cases , in which appeals may be taken from justices and other courts. The Supreme Court, the court of appeals, if established by the Legislature, the district courts [,] and such other courts [,] as the Legislature shall designate [, shall be] are courts of record.


Sec. 11. The justices of the Supreme Court , the judges of the court of appeals, if established by the Legislature, and the district judges [shall be] are ineligible to any office, other than a judicial office, during the term for which they [shall] have been elected or appointed . [; and all] All elections or appointments of any such judges by the people, Legislature [,] or otherwise [,] during said period [,] to any office other than judicial [, shall be] are void.


[Sec:] Sec. 15. The justices of the Supreme Court , the judges of the court of appeals, if established by the Legislature, and the district judges [shall] are each entitled to receive for their services a compensation to be fixed by law and paid in the manner provided by law, which [shall] must not be increased or diminished during the term for which they [shall] have been elected, unless a

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vacancy occurs, in which case the successor of the former incumbent [shall] is entitled to receive only such salary as may be provided by law at the time of his election or appointment . [; and provision shall] A provision must be made by law for setting apart from each year’s revenue a sufficient amount of money [,] to pay such compensation.


Sec. 20. 1. When a vacancy occurs before the expiration of any term of office in the Supreme Court or the court of appeals, if established by the Legislature, or among the district judges, the Governor shall appoint a justice or judge from among three nominees selected for such individual vacancy by the Commission on Judicial Selection. 2. The term of office of any justice or judge so appointed expires on the first Monday of January following the next general election. 3. Each nomination for the Supreme Court [shall] or the court of appeals, if established by the Legislature, must be made by the permanent Commission, composed of: (a) The Chief Justice or an associate justice designated by him; (b) Three members of the State Bar of Nevada, a public corporation created by statute, appointed by its Board of Governors; and (c) Three persons, not members of the legal profession, appointed by the Governor. 4. Each nomination for the district court [shall] must be made by a temporary commission composed of: (a) The permanent Commission; (b) A member of the State Bar of Nevada resident in the judicial district in which the vacancy occurs, appointed by the Board of Governors of the State Bar of Nevada; and (c) A resident of such judicial district, not a member of the legal profession, appointed by the Governor. 5. If at any time the State Bar of Nevada ceases to exist as a public corporation or ceases to include all attorneys admitted to practice before the courts of this State, the Legislature shall provide by law, or if it fails to do so the Supreme Court shall provide by rule, for the appointment of attorneys at law to the positions designated in this section to be occupied by members of the State Bar of Nevada. 6. The term of office of each appointive member of the permanent Commission, except the first members, is 4 years. Each appointing authority shall appoint one of the members first appointed for a term of 2 years. If a vacancy occurs, the appointing authority shall fill the vacancy for the unexpired term. The additional members of a temporary commission [shall] must be appointed when a vacancy occurs, and their terms [shall] expire when the nominations for such vacancy have been transmitted to the Governor. 7. An appointing authority shall not appoint to the permanent Commission more than: (a) One resident of any county. (b) Two members of the same political party. No member of the permanent Commission may be a member of [a] the Commission on Judicial Discipline. 8. After the expiration of 30 days from the date on which the Commission on Judicial Selection has delivered to him its list of nominees for any vacancy, if the Governor has not made the appointment required by this Section, he shall make no other appointment to any public office until he has appointed a justice or judge from the list submitted. [ If a commission on judicial selection is established by another section of this Constitution to nominate persons to fill vacancies on the Supreme Court, such commission shall serve as the permanent Commission established by subsection 3 of this Section.]


Sec. 21. 1. A justice of the Supreme Court, a judge of the court of appeals, if established by the Legislature, a district judge, a justice of the peace or a municipal judge may, in addition to the provision of Article 7 for impeachment, be censured, retired, removed or otherwise disciplined by the Commission on Judicial Discipline. Pursuant to rules governing appeals adopted by the Supreme Court, a justice or judge may appeal from the action of the Commission to the Supreme Court, which may reverse such action or take any alternative action provided in this subsection. 2. The Commission is composed of: (a) Two justices or judges appointed by the Supreme Court;

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(b) Two members of the State Bar of Nevada, a public corporation created by statute, appointed by its Board of Governors; and (c) Three persons, not members of the legal profession, appointed by the Governor. The Commission shall elect a Chairman from among its three lay members. 3. If at any time the State Bar of Nevada ceases to exist as a public corporation or ceases to include all attorneys admitted to practice before the courts of this State, the Legislature shall provide by law, or if it fails to do so the Supreme Court shall provide by rule, for the appointment of attorneys at law to the positions designated in this Section to be occupied by members of the State Bar of Nevada. 4. The term of office of each appointive member of the Commission, except the first members, is 4 years. Each appointing authority shall appoint one of the members first appointed for a term of 2 years. If a vacancy occurs, the appointing authority shall fill the vacancy for the unexpired term. An appointing authority shall not appoint more than one resident of any county. The Governor shall not appoint more than two members of the same political party. No member may be a member of a commission on judicial selection. 5. The Legislature shall establish: (a) In addition to censure, retirement and removal, the other forms of disciplinary action that the Commission may impose; (b) The grounds for censure and other disciplinary action that the Commission may impose, including, but not limited to, violations of the provisions of the Code of Judicial Conduct; (c) The standards for the investigation of matters relating to the fitness of a justice or judge; and (d) The confidentiality or nonconfidentiality, as appropriate, of proceedings before the Commission, except that, in any event, a decision to censure, retire or remove a justice or judge must be made public. 6. The Supreme Court shall adopt a Code of Judicial Conduct. 7. The Commission shall adopt rules of procedure for the conduct of its hearings and any other procedural rules it deems necessary to carry out its duties. 8. No justice or judge may by virtue of this section be: (a) Removed except for willful misconduct, willful or persistent failure to perform the duties of his office or habitual intemperance; or (b) Retired except for advanced age which interferes with the proper performance of his judicial duties, or for mental or physical disability which prevents the proper performance of his judicial duties and which is likely to be permanent in nature. 9. Any matter relating to the fitness of a justice or judge may be brought to the attention of the Commission by any person or on the motion of the Commission. The Commission shall, after preliminary investigation, dismiss the matter or order a hearing to be held before it. If a hearing is ordered, a statement of the matter [shall] must be served upon the justice or judge against whom the proceeding is brought. The Commission in its discretion may suspend a justice or judge from the exercise of his office pending the determination of the proceedings before the Commission. Any justice or judge whose removal is sought is liable to indictment and punishment according to law. A justice or judge retired for disability in accordance with this Section is entitled thereafter to receive such compensation as the Legislature may provide. 10. If a proceeding is brought against a justice of the Supreme Court, no justice of the Supreme Court may sit on the Commission for that proceeding. If a proceeding is brought against a judge of the court of appeals, no judge of the court of appeals may sit on the Commission for that proceeding. If a proceeding is brought against a district judge, no district judge from the same judicial district may sit on the Commission for that proceeding. If a proceeding is brought against a justice of the peace, no justice of the peace from the same township may sit on the Commission for that proceeding. If a proceeding is brought against a municipal judge, no municipal judge from the same city may sit on the Commission for that proceeding. If an appeal is taken from an action of the Commission to the Supreme Court, any justice who sat on the Commission for that proceeding is disqualified from participating in the consideration or decision of the appeal. When any member of the Commission is disqualified by this subsection, the Supreme Court shall appoint a substitute from among the eligible judges. 11. The Commission may: (a) Designate for each hearing an attorney or attorneys at law to act as counsel to conduct the proceeding; (b) Summon witnesses to appear and testify under oath and compel the production of books, papers, documents and records;

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(c) Grant immunity from prosecution or punishment when the Commission deems it necessary and proper in order to compel the giving of testimony under oath and the production of books, papers, documents and records; and (d) Exercise such further powers as the Legislature may from time to time confer upon it.


[Sec:] Sec. 3. For any reasonable cause to be entered on the journals of each House, which may [,] or may not be sufficient grounds for impeachment, the [Chief Justice and associate] justices of the Supreme Court , the judges of the court of appeals, if established by the Legislature, and the judges of the district courts [shall] must be removed from office on the vote of two thirds of the members elected to each branch of the Legislature . [, and the] The justice or judge complained of [, shall] must be served with a copy of the complaint against him [, and shall] and have an opportunity of being heard in person or by counsel in his defense . [, provided, that no] No member of either branch of the Legislature [shall be] is eligible to fill the vacancy occasioned by such removal.


[Sec:] Sec. 8. The Legislature shall provide for the speedy publication of all statute laws of a general nature [,] and such decisions of the Supreme Court [,] and the court of appeals, if established by the Legislature, as it may deem expedient . [; and all] All laws and judicial decisions [shall] must be free for publication by any person . [; provided, that no] No judgment of the Supreme Court or the court of appeals shall take effect and be operative until the opinion of the court in such case [shall be] is filed with the clerk of said court.

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QUESTION NO. 3

Amendment to the Sales and Use Tax Act of 1955

Assembly Bill 403 of the 75th Session

CONDENSATION (Ballot Question) Shall the Sales and Use Tax Act of 1955 be amended to authorize the Legislature to amend or repeal any provision of this Act only if necessary to resolve a conflict with any federal law or interstate agreement for the administration, collection, or enforcement of sales and use taxes?

Yes No

EXPLANATION This proposed amendment to the Sales and Use Tax Act of 1955 would authorize the Nevada Legislature to enact legislation amending or repealing any provision of this Act without obtaining voter approval whenever such legislation is necessary to resolve a conflict with any federal law or interstate agreement for the administration, collection, or enforcement of sales and use taxes. The proposed amendment would not authorize the Legislature, without obtaining voter approval, to enact any legislation that increases the rate of any tax imposed pursuant to this Act, or to narrow the scope of any exemption under the Act. Nevada has enacted laws providing for the administration of sales and use taxes in accordance with the interstate Streamlined Sales and Use Tax Agreement to which Nevada is a member. The purpose of this Agreement is to simplify and modernize sales and use tax administration in order to reduce the burden of tax compliance for all sellers and types of commerce within and across state lines. To avoid a conflict with the provisions of the Agreement, the Legislature may be required to enact legislation amending the Sales and Use Tax Act of 1955 in response to federal legislation approved by Congress affecting the Agreement or in response to interstate actions amending the Agreement. The Legislature has the authority to amend local sales taxes without voter approval, but the Sales and Use Tax Act, which was enacted by referendum, cannot be amended without voter approval. Passage of this question would grant limited authority to amend the Sales and Use Tax Act to resolve certain conflicts. A “Yes” vote would authorize the Legislature to amend or repeal any provision of the Sales and Use Tax Act of 1955 without voter approval in order to resolve a conflict with federal law or interstate agreements for the administration, collection, or enforcement of the sales and use tax, except for legislation that would increase the rate of tax imposed pursuant to the Act or narrow the scope of any exemption under the Act. A “No” vote would continue to require the Legislature to obtain voter approval before enacting any legislation amending or repealing any provision of the Sales and Use Tax Act of 1955.

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ARGUMENTS FOR PASSAGE To remain in compliance with the Streamlined Sales and Use Tax Agreement, Nevada must act in a timely manner regarding federal legislation or amendments to the Agreement that affect the Sales and Use Tax Act of 1955. Authorizing the Legislature to amend or repeal provisions of the Act without voter approval, under certain limited conditions, would allow the Legislature to respond flexibly and efficiently to such legislation and amendments. Because the Legislature only meets regularly in odd-numbered years and general elections only occur in even-numbered years, there is already a potential 2-year delay in maintaining compliance with the Agreement. The additional delay of requiring approval of a ballot question to make technical and administrative changes relating to sales and use taxes increases the risk of falling out of compliance with the Agreement, which would jeopardize Nevada’s membership status under the Agreement. This amendment does not authorize the Legislature, without voter approval, to increase the State’s portion of the tax rate (2 percent) or to take away or narrow the scope of any tax exemption under the Act.

ARGUMENTS AGAINST PASSAGE Amendments to the Sales and Use Tax Act of 1955 have required voter approval since 1956 when Nevada voters approved the Act through the constitutional referendum process. Since that time, the Department of Taxation has been able to administer sales and use taxes and the Nevada Legislature has been able to enact appropriate legislation to amend the State’s portion of the sales and use tax and obtain voter approval when required. With respect to federal law and the Streamlined Sales and Use Tax Agreement, the State was able to become a member to the Agreement and has been able to maintain compliance with the Agreement up to this point under the current process that requires voter approval. The citizens of Nevada should not give up the right to approve even minor legislation that changes the administration, collection, and enforcement of the State’s portion of the sales and use tax.

FISCAL NOTE Financial Impact – Cannot Be Determined If this proposal to amend the Sales and Use Tax Act of 1955 is approved by voters, the Nevada Legislature would be authorized to make changes to the Sales and Use Tax Act of 1955 without voter approval under certain conditions. It cannot be determined with any degree of certainty the number or types of legislative actions that would be required by the Legislature which would meet all of the conditions specified within the question. Thus, the financial impact on the sales and use taxes collected in the State or upon individual taxpayers cannot be determined with any reasonable degree of certainty.

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FULL TEXT OF MEASURE Assembly Bill No. 403–Assemblymen Settelmeyer; Gansert, Goedhart, Goicoechea, Grady, Hambrick, Hardy,

Stewart and Woodbury

CHAPTER 163

AN ACT relating to taxes on retail sales; revising various provisions governing sales and use taxes to ensure continued compliance with the Streamlined Sales and Use Tax Agreement; providing for the submission to the voters of the question whether the Sales and Use Tax Act of 1955 should be amended to authorize the Legislature to amend a provision of that Act only when necessary to resolve a conflict with a federal law or interstate agreement for the administration of sales and use taxes; and providing other matters properly relating thereto.

[Approved: May 22, 2009]

Legislative Counsel’s Digest: Existing law provides for the administration of sales and use taxes in this State pursuant to the Simplified Sales and Use Tax Administration Act, the Sales and Use Tax Act and the Local School Support Tax Law. (Chapters 360B, 372 and 374 of NRS) Under existing law, the Legislature has found and declared that this State should enter into an interstate agreement to simplify and modernize sales and use tax administration to reduce the burden of tax compliance for all sellers and types of commerce. (NRS 360B.020) Existing law requires the Nevada Tax Commission to enter into the Streamlined Sales and Use Tax Agreement and take all other actions reasonably required to implement the provisions of the Agreement. (NRS 360B.110) Sections 1-9 of this bill carry out recent amendments to the Agreement regarding the exclusion of electronically transferred products from certain required definitions, the certification by the State of the software of certain computer programs that calculate the taxes due on a sale, a limited waiver of liability for sellers who fail to collect a tax increase that becomes effective within 30 days after the enactment of a statute which provides for that increase, and the exclusion of certain delivery charges from the calculation of sales and use taxes. Existing law authorizes the adoption of an ordinance for the imposition of a sales and use tax in Nye County to support public safety services. (Nye County Sales and Use Tax Act of 2007) Section 10 of this bill revises the requirements for such an ordinance in accordance with the provisions of the Streamlined Sales and Use Tax Agreement imposing restrictions on the date of implementation of changes in tax rates. Existing law includes various provisions of the Sales and Use Tax Act of 1955. (NRS 372.010-372.115, 372.185-372.205, 372.260-372.284, 372.285-372.326, 372.327-372.345, 372.350) Under existing law, the provisions of that Act, which was submitted to and approved by the voters at the 1956 General Election, cannot be amended or repealed without additional voter approval. (Nev. Const. Art. 19, § 1) Sections 11-19 of this bill provide for the submission to the voters of an amendment to that Act to authorize the Legislature to amend that Act only if such a legislative amendment is necessary to resolve a conflict with any federal law or interstate agreement for the administration of sales and use taxes, and the legislative amendment does not increase the rate of a tax imposed pursuant to that Act or narrow the scope of a tax exemption approved by the voters.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Chapter 360B of NRS is hereby amended by adding thereto a new section to read as follows: 1. “Specified digital products” means electronically transferred digital audio works, digital audiovisual works and digital books. 2. As used in this section: (a) “Digital audio works” means works that result from the fixation of a series of musical, spoken or other sounds, including ringtones. (b) “Digital audiovisual works” means a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any. (c) “Digital books” means works that are generally recognized in the ordinary and usual sense as books. (d) “Electronically transferred” means obtained by a purchaser by means other than tangible storage media. (e) “Ringtones” means digitized sound files that are downloaded onto a device and may be used to alert the customer with respect to a communication. Sec. 2. NRS 360B.225 is hereby amended to read as follows: 360B.225 The Department shall: 1. Review the software submitted for the certification of a certified automated system pursuant to the Agreement and, if the Department determines that the software [adequately classifies each exemption from the sales and use taxes imposed in this State which is based upon the description of a product,] accurately reflects the taxability of the product categories included in the program, certify its acceptance of the [classifications made by the system.] determination of the taxability of the product categories included in the program.

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2. Except as otherwise provided in subsection 3: (a) If a certified service provider acting on behalf of a registered seller fails to collect the correct amount of any sales or use tax imposed in this State as a result of his reliance on the certification of the Department pursuant to subsection 1 regarding the certified automated system used by that certified service provider, waive any liability of the certified service provider, and of the registered seller on whose behalf the certified service provider is acting, for: (1) The amount of the sales or use tax which the certified service provider fails to collect as a result of that reliance; and (2) Any penalties and interest on that amount. (b) If a registered seller who elects to use a certified automated system pursuant to subsection 3 of NRS 360B.200 fails to collect the correct amount of any sales or use tax imposed in this State as a result of his reliance on the certification of the Department pursuant to subsection 1 regarding the certified automated system used by that registered seller, waive any liability of the registered seller for: (1) The amount of the sales or use tax which the registered seller fails to collect as a result of that reliance; and (2) Any penalties and interest on that amount. 3. Notify a certified service provider or a registered seller who elects to use a certified automated system pursuant to subsection 3 of NRS 360B.200 if the Department determines that the taxability of any item or transaction is being incorrectly classified by the certified automated system used by the certified service provider or registered seller. The provisions of subsection 2 do not require the waiver of any liability for the incorrect classification of an item or transaction regarding which notice was provided to the certified service provider or registered seller pursuant to this subsection if the incorrect classification occurs more than 10 days after the receipt of that notice. Sec. 3. NRS 360B.250 is hereby amended to read as follows: 360B.250 The Department shall: 1. If a registered seller fails to collect the correct amount of any sales or use tax imposed in this State as a result of his reasonable reliance on the information posted pursuant to NRS 360B.230 or his compliance with subsection 2 of NRS 360B.240, waive any liability of the registered seller for: (a) The amount of the sales or use tax which the registered seller fails to collect as a result of that reliance; and (b) Any penalties and interest on that amount. 2. If a certified service provider acting on behalf of a registered seller fails to collect the correct amount of any sales or use tax imposed in this State as a result of his reasonable reliance on the information posted pursuant to NRS 360B.230 or his compliance with subsection 2 of NRS 360B.240, waive any liability of the certified service provider, and of the registered seller on whose behalf the certified service provider is acting, for: (a) The amount of the sales or use tax which the certified service provider fails to collect as a result of that reliance; and (b) Any penalties and interest on that amount. 3. Waive any liability of a purchaser for any sum for which the liability of a registered seller or certified service provider is required to be waived pursuant to subsection 1 or 2 with regard to a transaction involving that purchaser. 4. If a purchaser fails to pay the correct amount of any sales or use tax imposed in this State as a result of his reasonable reliance on the information posted pursuant to NRS 360B.230, waive any liability of the purchaser for: (a) The amount of the sales or use tax which the purchaser fails to pay as a result of that reliance; and (b) Any penalties and interest on that amount. 5. If an increase in the rate of any sales or use tax imposed in this State becomes effective within 30 days after the enactment of a statute providing for that increase, waive any liability of a registered seller for: (a) The amount of the sales or use tax which the registered seller fails to collect at the increased rate; and (b) Any penalties and interest on that amount, unless the registered seller fails to collect the tax at the rate in effect immediately preceding that increase, the registered seller’s failure to collect the tax at the increased rate extends beyond the first 30 days after the enactment of the statute providing for that increase, the registered seller fraudulently fails to collect the tax at the increased rate or the registered seller solicits purchasers based on the rate in effect immediately preceding that increase.

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Sec. 4. NRS 360B.290 is hereby amended to read as follows: 360B.290 Any invoice, billing or other document given to a purchaser that indicates the sales price for which tangible personal property is sold must state separately any amount received by the seller for: 1. Any transportation, shipping or postage charges for the delivery of the property to a location designated by the purchaser. 2. Any installation charges for the property; [2.] 3. Any credit for any trade-in which is specifically exempted from the sales price of the property pursuant to chapter 372 or 374 of NRS; [3.] 4. Any interest, financing and carrying charges from credit extended on the sale; and [4.] 5. Any taxes legally imposed directly on the consumer. Sec. 5. NRS 360B.400 is hereby amended to read as follows: 360B.400 In administering the provisions of this chapter and chapters 372 and 374 of NRS, and in carrying out the provisions of the Agreement, the Department shall construe the terms defined in NRS 360B.405 to 360B.495, inclusive, and section 1 of this act, unless the context otherwise requires, in the manner prescribed by those sections. Sec. 6. NRS 360B.415 is hereby amended to read as follows: 360B.415 “Computer software” means a set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task. The term does not include any specified digital products. Sec. 7. NRS 360B.425 is hereby amended to read as follows: 360B.425 “Delivery charges” means charges by a seller of personal property for the preparation and delivery of the property to a location designated by the purchaser of the property, including, but not limited to, charges for transportation, shipping, postage, handling, crating and packing [.] , except that the term does not include any charges for transportation, shipping or postage which are stated separately pursuant to NRS 360B.290. Sec. 8. NRS 360B.480 is hereby amended to read as follows: 360B.480 1. “Sales price” means the total amount of consideration, including cash, credit, property and services, for which personal property is sold, leased or rented, valued in money, whether received in money or otherwise, and without any deduction for: (a) The seller’s cost of the property sold; (b) The cost of materials used, labor or service cost, interest, losses, all costs of transportation to the seller, all taxes imposed on the seller, and any other expense of the seller; (c) Any charges by the seller for any services necessary to complete the sale, including any delivery charges which are not stated separately pursuant to NRS 360B.290 and excluding any installation charges which are stated separately pursuant to NRS 360B.290; and (d) Except as otherwise provided in subsection 2, any credit for any trade-in. 2. The term does not include: (a) Any delivery charges which are stated separately pursuant to NRS 360B.290; (b) Any installation charges which are stated separately pursuant to NRS 360B.290; [(b)] (c) Any credit for any trade-in which is: (1) Specifically exempted from the sales price pursuant to chapter 372 or 374 of NRS; and (2) Stated separately pursuant to NRS 360B.290; [(c)] (d) Any discounts, including those in the form of cash, term or coupons that are not reimbursed by a third party, which are allowed by a seller and taken by the purchaser on a sale; [(d)] (e) Any interest, financing and carrying charges from credit extended on the sale of personal property, if stated separately pursuant to NRS 360B.290; and [(e)] (f) Any taxes legally imposed directly on the consumer which are stated separately pursuant to NRS 360B.290. 3. The term includes consideration received by a seller from a third party if: (a) The seller actually receives consideration from a person other than the purchaser and the consideration is directly related to a price reduction or discount on the sale; (b) The seller has an obligation to pass the price reduction or discount through to the purchaser; (c) The amount of the consideration attributable to the sale is fixed and determinable by the seller at the time of the sale of the item to the purchaser; and (d) Any of the following criteria is satisfied: (1) The purchaser presents a coupon, certificate or other documentation to the seller to claim a price reduction or discount, and the coupon, certificate or other documentation is authorized, distributed or granted by a third party with the understanding that the third party will reimburse any seller to whom the coupon, certificate or other documentation is presented.

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(2) The purchaser identifies himself to the seller as a member of a group or organization entitled to a price reduction or discount. For the purposes of this subparagraph, a preferred customer card that is available to any patron does not constitute membership in such a group. (3) The price reduction or discount is identified as a third-party price reduction or discount on the invoice received by the purchaser or on a coupon, certificate or other documentation presented by the purchaser. Sec. 9. NRS 360B.485 is hereby amended to read as follows: 360B.485 “Tangible personal property” includes, but is not limited to, electricity, water, gas, steam and prewritten computer software. The term does not include any products that are transferred electronically to a purchaser. Sec. 10. Section 15 of the Nye County Sales and Use Tax Act of 2007, being chapter 545, Statutes of Nevada 2007, at page 3425, is hereby amended to read as follows:

Sec. 15. An ordinance enacted pursuant to this act must include provisions in substance as follows: 1. A provision imposing a tax on the gross receipts of any retailer from the sale of all tangible personal property sold at retail or stored, used or otherwise consumed in the County, including incorporated cities in the County, at a rate that does not exceed one-half of 1 percent. 2. Provisions substantially identical to those contained in chapter 374 of NRS, insofar as applicable. 3. A provision that an amendment to chapter 374 of NRS enacted after the effective date of the ordinance, not inconsistent with this act, automatically becomes part of the ordinance imposing the tax. 4. A provision that the Board shall contract with the Department, before the effective date of the ordinance, to perform all the functions incident to the administration or operation of the tax in the County. 5. A provision that a purchaser is entitled to a refund, in accordance with the provisions of NRS 374.635 to 374.720, inclusive, of the amount of the tax required to be paid that is attributable to the tax imposed on the sale of, and the storage, use or other consumption in the County, including incorporated cities in the County, of, tangible personal property used for the performance of a written contract for the construction of an improvement to real property: (a) That was entered into on or before the effective date of the tax; or (b) For which a binding bid was submitted before that date if the bid was afterward accepted, and pursuant to the terms of the contract or bid, the contract price or bid amount may not be adjusted to reflect the imposition of the tax. 6. A provision that specifies the date on which the tax must first be imposed [,] or on which any change in the rate of tax becomes effective, which must [not be earlier than] be the first day of the [second calendar month following] first calendar quarter that begins at least 120 days after the effective date of the ordinance.

Sec. 11. The Legislature hereby finds and declares that: 1. There has been a rapid increase during recent years in the conduct of interstate commerce through telecommunication and electronic means. 2. Many of the merchants who transact these forms of interstate commerce have been discouraged by the substantial burdens of ascertaining and complying with the extremely diverse and detailed tax laws of each state from making the efforts necessary to collect sales and use taxes on behalf of the states in which they do not maintain a place of business. 3. As a result of the proliferation of these forms of interstate commerce and federal restrictions on the ability of each state to collect sales and use taxes from merchants who do not maintain a place of business in that state, the people of this State are losing millions of dollars in state and local tax revenue. 4. The nonpayment of Nevada sales and use taxes by merchants in other states provides those merchants with an unfair competitive advantage over local merchants who lawfully pay the sales and use taxes due in this State. 5. As a result of the similarity of these circumstances in the various states, considerable efforts are being made to provide more uniformity, simplicity and fairness in the administration and collection of sales and use taxes in this country, including the introduction and consideration of congressional legislation and the participation by Nevada and many other states in the Streamlined Sales and Use Tax Agreement. 6. Compliance with the Streamlined Sales and Use Tax Agreement and its amendments has and will continue to require amendments to the Nevada Sales and Use Tax Act, and it is anticipated that any congressional legislation will also necessitate such amendments. 7. The Nevada Sales and Use Tax Act was approved by referendum at the General Election in 1956 and therefore, pursuant to Section 1 of Article 19 of the Constitution of the State of

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Nevada, may not be “amended, annulled, repealed, set aside, suspended or in any way made inoperative except by the direct vote of the people.” 8. Unlike the circumstances in other states where legislatures have the direct authority to amend sales and use tax laws in a timely manner, the period required for the legislative enactment and subsequent voter approval of any necessary amendments to the Nevada Sales and Use Tax Act has placed the ability of this State to comply with the Streamlined Sales and Use Tax Agreement and any congressional legislation in serious jeopardy. 9. It would be beneficial to the public welfare for the people of this State by direct vote to authorize the Legislature to enact without any additional voter approval such amendments to the Nevada Sales and Use Tax Act as are necessary to resolve conflicts with any congressional legislation or interstate agreements providing for the administration, collection or enforcement of sales and use taxes. Sec. 12. At the General Election on November 2, 2010, a proposal must be submitted to the registered voters of this State to amend the Sales and Use Tax Act, which was enacted by the 47th Session of the Legislature of the State of Nevada and approved by the Governor in 1955, and subsequently approved by the people of this State at the General Election held on November 6, 1956. Sec. 13. At the time and in the manner provided by law, the Secretary of State shall transmit the proposed act to the several county clerks, and the county clerks shall cause it to be published and posted as provided by law. Sec. 14. The proclamation and notice to the voters given by the county clerks pursuant to law must be in substantially the following form:

Notice is hereby given that at the General Election on November 2, 2010, a question will appear on the ballot for the adoption or rejection by the registered voters of the State of the following proposed act:

AN ACT to amend an Act entitled “An Act to provide revenue for the State of Nevada; providing for sales and use taxes; providing for the manner of collection; defining certain terms; providing penalties for violation, and other matters properly relating thereto.” approved March 29, 1955, as amended.

THE PEOPLE OF THE STATE OF NEVADA

DO ENACT AS FOLLOWS: Section 1. The above-entitled Act, being chapter 397, Statutes of Nevada 1955, at page 788, is hereby amended by adding thereto a new section to be designated as section 153.5, immediately following section 153.2, to read as follows:

Sec. 153.5. The people of the State of Nevada hereby authorize the Legislature to enact legislation that amends, annuls, repeals, sets aside, suspends or otherwise makes inoperative any provision of this Act, being chapter 397, Statutes of Nevada 1955, at page 762, only if such legislation meets all of the following criteria: 1. It is necessary to resolve a conflict with any federal statute or regulation or interstate agreement for the administration, collection or enforcement of sales and use taxes; 2. It does not increase the rate of any tax imposed pursuant to this Act; and 3. It does not narrow the scope of any tax exemption provided pursuant to the provisions of sections 48 to 67.1, inclusive, of this Act, as amended by the direct vote of the people.

Sec. 2. This act becomes effective on January 1, 2011. Sec. 15. The ballot page assemblies and the paper ballots to be used in voting on the question must present the question in substantially the following form:

Shall the Sales and Use Tax Act of 1955 be amended to authorize the Legislature to amend a provision of this Act only if necessary to resolve a conflict with any federal law or interstate agreement for the administration, collection or enforcement of sales and use taxes?

Yes No Sec. 16. The explanation of the question which must appear on each paper ballot and sample ballot and in every publication and posting of notice of the question must be in substantially the following form:

(Explanation of Question) The proposed amendment to the Sales and Use Tax Act of 1955 would authorize the Legislature to enact legislation amending a provision of this Act only if that legislation is

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necessary to resolve a conflict with any federal law or interstate agreement for the administration, collection or enforcement of sales and use taxes, that legislation does not increase the rate of any tax imposed pursuant to this Act, and that legislation does not narrow the scope of a tax exemption approved by the direct vote of the people.

Sec. 17. If a majority of the votes cast on the question is yes, the amendment to the Sales and Use Tax Act of 1955 becomes effective on January 1, 2011. If less than a majority of votes cast on the question is yes, the question fails and the amendment to the Sales and Use Tax Act of 1955 does not become effective. Sec. 18. All general election laws not inconsistent with this act are applicable. Sec. 19. Any informalities, omissions or defects in the content or making of the publications, proclamations or notices provided for in this act and by the general election laws under which this election is held must be so construed as not to invalidate the adoption of the act by a majority of the registered voters voting on the question if it can be ascertained with reasonable certainty from the official returns transmitted to the Office of the Secretary of State whether the proposed amendment was adopted by a majority of those registered voters. Sec. 20. The amendatory provisions of section 10 of this act do not apply to any ordinance enacted before the effective date of this act. Sec. 21. This act becomes effective upon passage and approval.

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QUESTION NO. 4


Assembly Joint Resolution No. 3 of the 74th Session

CONDENSATION (Ballot Question) Shall Article 1, Section 22 of the Nevada Constitution be repealed and shall Article 1, Section 8 of the Nevada Constitution be amended to revise provisions relating to eminent domain proceedings?

Yes No

EXPLANATION Approval of this question would repeal Article 1, Section 22 of the Nevada Constitution, known as the People’s Initiative to Stop the Taking of Our Land (PISTOL), and amend Article 1, Section 8 of the Nevada Constitution in order to: (1) provide that the transfer of private property from one private party to another is not considered a public use except under certain circumstances; (2) require an entity that takes private property to provide the property owner with all appraisals it has obtained; (3) grant a property owner the right to a separate determination of whether a taking constitutes a public use and place the burden of proof on the entity taking the property; (4) define “fair market value” and “just compensation”; (5) provide that neither party to an eminent domain action is liable for the other party’s attorney’s fees except under certain circumstances; and (6) make certain other changes related to eminent domain proceedings. The proposed amendment provides five exceptions to the prohibition against exercising eminent domain in order to transfer property from one private party to another. Under the following conditions, such a transfer would be considered a “public use” if: (1) the private party obtaining the property uses the property primarily to benefit a public service such as a utility, railroad, public transportation project, pipeline, road, bridge, airport, or facility that is owned by a public entity; (2) the property is leased to a private party that takes up a portion of an airport or facility that is owned by a public entity so long as the public entity notifies the original owner of its intention and allows the owner the opportunity to bid or propose on such a lease; (3) the property taken has been abandoned by the owner, is a threat to public safety, or contains hazardous waste that must be remediated, and the original owner is granted first right of refusal to reacquire the property on the same terms and conditions as anyone else; (4) the entity that obtains the property exchanges it for other property in order to relocate public or private structures or avoid excessive compensation or damages; or (5) the person from whom the property is taken consents to the taking. Additionally, the proposed amendment defines the terms “fair market value” and “just compensation” and provides for the manner of computing these amounts. It also stipulates that neither party may be held liable for the other party’s attorney’s fees in eminent domain proceedings except in the circumstance of an inverse condemnation, wherein a property owner makes a request for attorney’s fees in a legal action. The proposed amendment revises from 5 years to 15 years the

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amount of time within which the entity that took the property must put it to use before the property must be offered to, and will revert to, the original owner upon payment of the original purchase price. Finally, the repeal of Article 1, Section 22 of the Nevada Constitution would rescind a property owner’s right to disqualify one judge at the district court level and one judge at each appellate level in any eminent domain action. A “Yes” vote would repeal Article 1, Section 22 of the Nevada Constitution and amend Article 1, Section 8 of the Nevada Constitution relating to eminent domain proceedings. A “No” vote would retain Article 1, Section 22 of the Nevada Constitution and keep intact the current provisions of Article 1, Section 8 of the Nevada Constitution relating to eminent domain proceedings.

ARGUMENTS FOR PASSAGE Although the People’s Initiative to Stop the Taking of Our Land (PISTOL) remains a well-intentioned, popular initiative that provided much needed protection for Nevada’s private property owners, it also contains several flaws that have the potential to cost taxpayers money and hamper efforts to maintain and upgrade infrastructure, including schools, roads, water supply and sewage systems, and public transportation. Recognizing these problems, representatives of local governments, state agencies, private businesses, the public, and even the original sponsors of PISTOL worked together over the course of two legislative sessions to craft a workable constitutional amendment relating to eminent domain that allows Nevada to move forward with public projects while protecting private property rights, saving taxpayers money, and avoiding unnecessary lawsuits. The provisions of this question clearly define the limited instances in which private property can be transferred or leased to a private party through eminent domain, which do not include increasing tax revenue or generating profit for private businesses. This question builds on the successes of PISTOL while correcting its deficiencies.

ARGUMENTS AGAINST PASSAGE

The People’s Initiative to Stop the Taking of Our Land (PISTOL) was a response to eminent domain practices upheld by the United States Supreme Court in Kelo v. the City of New London and by the Nevada Supreme Court in Pappas v. the City of Las Vegas. In those cases, the courts expanded the definition of “public use” to allow local governments to increase their tax bases by turning over private property to private persons in order to support private business interests. This question seeks to weaken the protections contained in PISTOL by expanding the circumstances under which a government can use eminent domain to transfer property from one private party to another. The PISTOL initiative sought, in clear and concise language, to put a stop to these transfers once and for all, and to give property owners legal tools to use in the event that their property was targeted for taking by the government. The initiative passed with over 60 percent of the vote in both

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2006 and 2008. Voters understood the issues at hand and chose to pass the initiative in two successive elections. There is no reason to change the provisions of PISTOL.

FISCAL NOTE Financial Impact – Cannot be Determined This question would amend the Nevada Constitution to include new provisions relating to eminent domain proceedings within the State of Nevada, including: Allowing the direct or indirect transfer of any interest in private property to another private

person or entity as a public use in certain circumstances, as specified in the proposed constitutional amendment;

Removing the right for property owners to preempt one judge at the district court level and one judge at each appellate level in any eminent domain action; and

Requiring that property taken by eminent domain must be offered to, and reverts to, the person from whom the property was taken, upon repayment of the purchase price, if the entity who took the property fails to use the property within 15 years after obtaining possession of the property.

These proposed changes relating to eminent domain proceedings may affect the number of eminent domain proceedings that are undertaken by the State and local governments. However, because the number of eminent domain actions that may be undertaken cannot be estimated, the financial effect upon the State and local governments cannot be determined with any reasonable degree of certainty. Subsections 4 through 8, inclusive, and subsection 12 of Article 1, Section 22 of the Nevada Constitution contain various provisions relating to the rights of property owners in eminent domain proceedings, the calculation of fair market value for the property, and the determination of just compensation to the property owner. If this question is approved by the voters, these provisions of the Nevada Constitution would be repealed and replaced with similar language contained in this proposed constitutional amendment. These provisions of this question are not anticipated to have a financial effect upon the State or local governments, if approved by the voters.

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FULL TEXT OF MEASURE Assembly Joint Resolution No. 3 of the 74th Session–Assemblymen Hardy, Buckley, Ohrenschall, Horne, Gansert,

Allen, Anderson, Arberry, Atkinson, Beers, Bobzien, Carpenter, Christensen, Claborn, Cobb, Conklin, Denis, Goedhart, Goicoechea, Grady, Hogan, Kihuen, Kirkpatrick, Koivisto, Mabey, Manendo, Marvel, McClain, Mortenson, Munford, Oceguera, Parks, Parnell, Pierce, Segerblom, Settelmeyer, Smith, Stewart, Weber and Womack

Joint Sponsors: Senators Care, Heck, Cegavske, Hardy, Raggio, Beers, Coffin, Horsford, Lee, Mathews,

McGinness, Nolan, Schneider, Townsend, Washington, Wiener and Woodhouse

FILE NUMBER 51 ASSEMBLY JOINT RESOLUTION—Proposing to amend the Nevada Constitution to revise provisions relating to

the taking of private property by eminent domain. Legislative Counsel’s Digest: Section 8 of Article 1 of the Nevada Constitution and the Fifth Amendment to the United States Constitution provide that private property cannot be taken for a public use without just compensation. In Kelo v. City of New London, 125 S.Ct. 2655 (2005), the United States Supreme Court ruled that the use of eminent domain to acquire property and transfer it to another private party for the purpose of economic development does not violate the Takings Clause of the Fifth Amendment to the United States Constitution. This resolution proposes an amendment to the Nevada Constitution to prohibit, except in certain circumstances, the taking of private property if the purpose of the taking is to transfer an interest in that property to another private party. In addition, the amendment proposed by this resolution requires an entity which is taking property by the exercise of eminent domain to provide the owner of the property with all appraisals of the property obtained by the entity before the entity is allowed to occupy the property. Furthermore, in all eminent domain actions, the owner of the property that is being taken is entitled to a determination of whether the taking is for a public use and the entity that is taking the property has the burden of proving that the taking is for a public use. The amendment proposed by this resolution provides for the manner of computing the just compensation owed to a person whose property is taken by the exercise of eminent domain. Also, the amendment provides that neither a property owner nor an entity which is taking property by the exercise of eminent domain is liable for the attorney’s fees of the other party, except in a certain circumstance. Under the amendment, the owner of property taken by the exercise of eminent domain, or his successor in interest, has the right to reacquire the property for the price paid by the entity which took the property under certain circumstances. This resolution also proposes to repeal the “People’s Initiative to Stop the Taking of Our Land” if that initiative is approved by the voters at the 2008 General Election.

RESOLVED BY THE ASSEMBLY AND SENATE OF THE STATE OF NEVADA, JOINTLY, That Section 8 of Article 1 of the Nevada Constitution be amended to read as follows:

Sec. 8. 1. No person shall be tried for a capital or other infamous crime (except in cases of impeachment, and in cases of the militia when in actual service and the land and naval forces in time of war, or which this State may keep, with the consent of Congress, in time of peace, and in cases of petit larceny, under the regulation of the Legislature) except on presentment or indictment of the grand jury, or upon information duly filed by a district attorney, or Attorney General of the State, and in any trial, in any court whatever, the party accused shall be allowed to appear and defend in person, and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled, in any criminal case, to be a witness against himself. 2. The Legislature shall provide by law for the rights of victims of crime, personally or through a representative, to be: (a) Informed, upon written request, of the status or disposition of a criminal proceeding at any stage of the proceeding; (b) Present at all public hearings involving the critical stages of a criminal proceeding; and (c) Heard at all proceedings for the sentencing or release of a convicted person after trial. 3. Except as otherwise provided in subsection 4, no person may maintain an action against the State or any public officer or employee for damages or injunctive, declaratory or other legal or equitable relief on behalf of a victim of a crime as a result of a violation of any statute enacted by the Legislature pursuant to subsection 2. No such violation authorizes setting aside a conviction or sentence or continuing or postponing a criminal proceeding. 4. A person may maintain an action to compel a public officer or employee to carry out any duty required by the Legislature pursuant to subsection 2. 5. No person shall be deprived of life, liberty, or property, without due process of law. 6. Private property shall not be taken for public use without just compensation having been first made, or secured, except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterward made. 7. Except as otherwise provided in paragraphs (a) to (e), inclusive, the public uses for which private property may be taken do not include the direct or indirect transfer of any interest in the

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property to another private person or entity. A transfer of property taken by the exercise of eminent domain to another private person or entity is a public use in the following circumstances: (a) The entity that took the property transfers the property to a private person or entity and the private person or entity uses the property primarily to benefit a public service, including, without limitation, a utility, railroad, public transportation project, pipeline, road, bridge, airport or facility that is owned by a governmental entity. (b) The entity that took the property leases the property to a private person or entity that occupies an incidental part of an airport or a facility that is owned by a governmental entity and, before leasing the property: (1) Uses its best efforts to notify the person from whom the property was taken that the property will be leased to a private person or entity that will occupy an incidental part of an airport or a facility that is owned by a governmental entity; and (2) Provides the person from whom the property was taken with an opportunity to bid or propose on any such lease. (c) The entity: (1) Took the property in order to acquire property that was abandoned by the owner, abate an immediate threat to the safety of the public or remediate hazardous waste; and (2) Grants a right of first refusal to the person from whom the property was taken that allows that person to reacquire the property on the same terms and conditions that are offered to the other private person or entity. (d) The entity that took the property exchanges it for other property acquired or being acquired by eminent domain or under the threat of eminent domain for roadway or highway purposes, to relocate public or private structures or to avoid payment of excessive compensation or damages. (e) The person from whom the property is taken consents to the taking. 8. In all actions in eminent domain: (a) Before the entity that is taking property obtains possession of the property, the entity shall give to the owner of the property a copy of all appraisals of the property obtained by the entity. (b) At the occupancy hearing, the owner of the property that is the subject of the action is entitled, at the property owner’s election, to a separate and distinct determination as to whether the property is being taken for a public use. (c) The entity that is taking property has the burden of proving that the taking is for a public use. (d) Except as otherwise provided in this paragraph, neither the entity that is taking property nor the owner of the property is liable for the attorney’s fees of the other party. This paragraph does not apply in an inverse condemnation action if the owner of the property that is the subject of the action makes a request for attorney’s fees from the other party to the action. 9. Except as otherwise provided in this subsection, if a court determines that a taking of property is for public use, the taken or damaged property must be valued at its highest and best use without considering any future dedication requirements imposed by the entity that is taking the property. If property is taken primarily for a profit-making purpose, the property must be valued at the use to which the entity that is taking the property intends to put the property, if such use results in a higher value for the property. 10. In all actions in eminent domain, fair market value is the highest price, on the date of valuation, that would be agreed to by a seller, who is willing to sell on the open market and has reasonable time to find a purchaser, and a buyer, who is ready, willing and able to buy, if both the seller and the buyer had full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. 11. In all actions in eminent domain, just compensation is that sum of money necessary to place the property owner in the same position monetarily as if the property had never been taken, excluding any governmental offsets except special benefits. Special benefits may only offset severance damages and may not offset the value for the property. Just compensation for the property taken by the exercise of eminent domain must include, without limitation, interest and reasonable costs and expenses, except attorney’s fees, incurred by the owner of the property that is the subject of the action. The district court shall determine, in a posttrial hearing, the award of interest and award as interest the amount of money which will put the person from whom the property is taken in as good a position monetarily as if the property had not been taken. The district court shall enter an order concerning: (a) The date on which the computation of interest will commence; (b) The rate of interest to be used to compute the award of interest, which must not be less than the prime rate of interest plus 2 percent; and (c) Whether the interest will be compounded annually.

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12. Property taken by the exercise of eminent domain must be offered to and reverts to the person from whom the property was taken upon repayment of the original purchase price if, within 15 years after obtaining possession of the property, the entity that took the property: (a) Fails to use the property for the public use for which the property was taken or for any public use reasonably related to the public use for which the property was taken; or (b) Seeks to convey any right, title or interest in all or part of the property to any other person and the conveyance is not occurring pursuant to subsection 7. The entity that has taken the property does not fail to use the property under paragraph (a) if the entity has begun active planning for or design of the public use, the assembling of land in furtherance of planning for or design of the public use or construction related to the public use. 13. If any provision of subsections 7 to 12, inclusive, or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or application of subsections 7 to 12, inclusive, which can be given effect without the invalid provision or application, and to this end the provisions of subsections 7 to 12, inclusive, are declared to be severable. 14. The provisions of subsections 7 to 12, inclusive, apply to an action in eminent domain that is filed on or after January 1, 2011.

And be it further RESOLVED, That Section 22 of Article 1 of the Nevada Constitution, commonly known as the “People’s Initiative to Stop the Taking of Our Land,” if that section is approved and ratified by the voters at the 2008 General Election, is hereby repealed.

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LOCAL REVENUE ADVISORY QUESTION Shall the consent of the governing body of the local government be required before the State Legislature can act to decrease revenues or reserves collected by, distributed to, or held by the local government, or impose fees on or mandate new or different services be performed by the local government?

Yes No

EXPLANATION The use of revenues paid by taxpayers for functions of local government by the State is resulting in the reduction and elimination of services provided by local governments. This ballot question will serve to advise the Nevada Legislature of whether the majority of the voting public in this County believes that the consent of the governing body of the local government should be required before the State Legislature can act to decrease revenues or reserves collected by, distributed to, or held by the local government, or impose fees on or mandate new or different services be performed by the local government. “Local government” means every political subdivision or other entity which has the right to levy or receive money from ad valorem or other taxes or any mandatory assessments, and includes, without limitation, counties, cities, towns, boards, school districts and other districts organized pursuant to Nevada Revised Statute, and any agency or department of a county or city which prepares a budget separate from that of the parent political subdivision. Examples of other districts organized pursuant to Nevada Revised Statute are water and sewer general improvement districts, and library districts. Examples of an agency or department of a county or city which prepares a budget separate from that of the parent political subdivision are district health departments and district courts. “Local revenues” include taxes, fees, intergovernmental transfers and other revenues that are used by local governments to provide services and programs, and to construct, operate and maintain facilities. Examples of fees that the State has or may impose are administrative fees for collecting sales taxes (increased by the 2009 Legislature) and a mandatory fee per employee to fund the administration of the state run Local Government Employee Management Relations Board. New service mandates without commensurate funding are often referred to as “unfunded mandates.” The consent of the local government would be considered and acted upon by the governing body of that local government in a public meeting noticed and conducted in conformance with Nevada’s Open Meeting Law. The question is purely advisory and does not place any legal requirement on any local government, any member of local government, or any officer of the county or the Nevada Legislature.

GENERAL FISCAL NOTE FOR ALL COUNTIES

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If the Legislature is required to obtain the consent of the governing body of the local government before the State Legislature can act to decrease revenues or reserves collected by, distributed to, or held by the local government, or impose fees on or mandate new or different services, it would have a positive financial effect on local government by potentially eliminating the need for local governments to adjust their adopted budgets and possibly reducing services or laying off employees due to the loss of local revenue.

Arguments Advocating Passage and Opposing Passage of the Question For use in counties not required to create committees to write these arguments

which includes Nye, Lyon, Churchill, Humboldt, White Pine, Pershing, Lander, Mineral, Lincoln, Storey, Eureka and Esmeralda Counties (population less than 40,000 according to the 2000 United States Decennial Census).

Argument Advocating Passage

Local governments provide services such as fire and police protection, courts, water

and sewer systems, libraries, parks and recreation programs, and state mandated services such as indigent medical care and defense. The Nevada Association of Counties has estimated that since July 2008 the Legislature has taken over $265 million in revenues collectively from the 17 Nevada Counties to balance the State’s budget. (Add specific information about the individual county). The loss of these revenues has impacted the Counties’ ability to provide essential services. Many local governments are experiencing declining revenues and have balanced their budgets by reducing or eliminating services and employees. (Add specific information about budget reductions in the individual county). Using the revenues directly imposed or received by local government, or imposing fees or new mandates on local governments in order to balance the State's budget is a disservice to the public. If approved, this question would send the message to the Nevada Legislature that the voters of this County want their local taxes to fund the provision of services by their local government and that the State should balance its budget without taking revenue from local governments.

Argument Opposing Passage

The State of Nevada is a sovereign entity. Local governments are created by, and for the convenience of, the State. The primary responsibility of providing government services remains with the State, therefore it is the duty of the State to use available revenue regardless of the source to balance its budget and carry out its responsibilities. In addition, the taxes and fees that are imposed by local government must first be authorized by the Legislature. The right of the Legislature to use local revenues to balance its budget

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should not be abrogated. According to studies prepared by the Nevada Department of Administration, Budget Office in 2009 local government revenues increased at a faster rate than the State’s. Also according to these studies the salaries of certain local government employees are higher than their counterparts who work for the State. Therefore, local governments should be required to help the State balance its budget by contributing a portion of their revenues, paying higher State administrative fees and taking on additional services previously provided by the State.

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ELKO COUNTY SCHOOL DISTRICT CAPITAL PROJECTS TAX PROPOSAL

Shall the Elko County School District be authorized to continue to levy a property tax of 75 cents per $100 assessed valuation previously authorized for School District capital projects for a period of 10 years commencing July 1, 2012?

Yes No

EXPLANATION: A "yes" vote would permit Elko County School District to continue to levy a capital project tax for (10) ten years in an amount not to exceed 75 cents per $100 of assessed valuation commencing July 1, 2012. The proceeds of the capital projects tax are to be used only for the purposes set forth in NRS 387.335, including but not limited to, acquiring sites and constructing and equipping new schools and improving older schools. A "no" vote would prevent the District from continuing to levy the capital projects tax at this time. Argument For the Capital Projects Tax Question: The Capital Projects Tax or “Pay-As-You-Go” tax has been in place in Elko County since 1986. The passage of this Question will not increase the District’s existing tax rates for the taxpayers in Elko County, and will continue to provide an interest free funding source to acquire, construct, equip and improve existing and new school facilities. With “Pay-As-You-Go” the District accumulates the money in advance of construction, allowing the District and the taxpayer to substantially reduce the cost of school construction and renovation by avoiding interest payments. Although population growth in Elko County has slowed, the District continues to need new schools, and older schools often require major renovation in order to remain useful in today’s technologically oriented society and to comply with Federal and State mandates. Brick-and-mortar schools ultimately cost taxpayers 1/2 to 1/3 less than modular classrooms. Recent numbers estimate that 24 percent, or over 2,200, of our students are being educated in modular classrooms. While modular classrooms function effectively for both students and teachers, the life span of a modular classroom is 20 years, or less than half that of a school constructed of brick and mortar. In fact, Elko Grammar School #2 was constructed in 1929 and continues to safely house approximately 350 students in grades K-4 to this day. Older schools throughout the District continue to need improvement including, but not limited to, roof repair, heating and ventilation upgrades and electrical/technological systems upgrades and repair. Such renovations can be costly, but result in an extended useful life of these buildings, and are generally less expensive than construction of an entirely new facility. “Pay-As-You-Go” will ensure that the District has a revenue source to provide for these projects.

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Argument Against the Capital Projects Tax Question: The current quality and capacity of school facilities is adequate in Elko County. The District should make do with the current condition of facilities, and should wait to improve and construct facilities until the needs are more critical. The District should replace systems and equipment only when they can no longer be repaired, and focus on the education of our students. In the event rapid enrollment growth occurs, the “Pay-As-You-Go” plan does not generate adequate revenue on an annual basis to keep up with the District growth and the inflation in construction costs. This may result in facilities not being available in a timely manner. If a bond issue was passed these facilities could be built in a timely manner, and the facilities could be provided at a lower tax rate. If the Federal and State government mandates updates to school facilities, they should provide the resources necessary to comply with any required updates. Rebuttal to the Argument Against the Capital Projects Tax Question: The need to repair and renovate school facilities is already critical. If the Question is not passed, the District will not have the financial resources to repair and renovate schools, resulting in inadequate educational facilities for students and a negative impact on local property values. The current District Master Facility Plan adopted by the Board of Trustees in the Spring of 2010 outlines the need for approximately $225 million dollars of funding for new or improved District facilities. The District has identified resources to construct just $38.5 million of these projects. The District prioritized the remaining projects and has identified approximately $180 million dollars of projects to be funded by the proposed renewal of the tax. These priorities were based on the District’s current projections of enrollment trends, program needs and facility conditions. Under “Pay-As-You-Go”:

No hidden costs are incurred such as long term debt and interest payments,

Buildings are debt free as completed, Building takes place on a priority basis as funds are collected, with

priorities determined by the electorate through the Board of Trustees, Funds cannot be used for teacher salaries, salaries of other

personnel, or operating costs of any kind, and The tax levy may be reduced or eliminated by the Board of Trustees

as future conditions dictate.

Rebuttal to the Argument For the Capital Projects Tax Question: The current school facilities have been and will continue to be adequate for educational purposes. The costs of repairs, renovations and additional construction will exceed the benefits of those projects. Avoiding the additional costs that will result from delaying improvements does not justify immediate repair and renovation of the facilities.

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Description of Anticipated Financial Effect: The District anticipates that the tax rate of 75 cents per $100 of assessed valuation will continue to provide revenue of $10,275,000 per year for capital projects throughout the District. The cost to the owner of a new home with a taxable value of $100,000 is estimated to be $262.50 per year. Voters are encouraged to check their most recent property tax bill for the taxable value of their property to determine the amount paid for this tax currently.

notice of general electiona - elko county, nevada · 2019. 6. 10. · disimone, eugene “gino”...

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