How can they do that? Joint resolutions and the special session — BLOG

This continually updated blog will chronicle the happenings of the 32nd special session of the Nevada Legislature, which began on Friday.

6:10 p.m. Aug. 1

How can they do that?

Both the Senate and the Assembly have introduced joint resolutions that would increase taxes on the mining industry. Earlier Saturday, the Senate passed its version over the vocal objections of Republicans, most of whom hail from northern and rural Nevada, where most the mining in the state occurs.

But since the Nevada Constitution limits the Legislature to considering only those bills that are included in the governor’s special session proclamation — and since that proclamation says nothing about changing the constitution to raise mining taxes — how can the Legislature even consider a joint resolution on the subject?

Glad you asked. The fine folks over at the Legislative Counsel Bureau looked into that very issue in a memo dated July 7, and concluded that the Legislature actually can consider joint resolutions outside the governor’s proclamation.

The memo distinguishes between joint resolutions and bills. Joint resolutions are proposed and passed by lawmakers in both houses, but don’t need to be signed by the governor like bills that enact statutes. Joint resolutions can be as benign as calling on Congress to take some action, or as serious as amending the constitution.

Before 2012, the constitution was more strict about what could happen in special sessions: It said “the Legislature shall transact no legislative business except for that for which they were specially convened” (emphasis added). But that was changed by amendment in 2012 to say “the Legislature shall not introduce, consider or pass any bills except those related to the business for which the Legislature has been specially convened” (emphasis added).

“We believe that the use of the term ‘bills’ and the omission of the term ‘resolutions’ is notable because other provisions of the Nevada Constitution use both terms, such as ‘bills or joint resolutions’ and ‘statute or resolution,’” the memo reads.

“Accordingly, because the Legislature has the power to pass bills and resolutions at a regular session, the Legislature also has the power to pass bills and resolutions at a special session, subject to express constitutional limitations,” the memo adds. “Based on the 2012 amendment, the Nevada Constitution expressly places limitations on the Legislature’s power at a special session only with regard to ‘bills,’ stating that ‘the Legislature shall not introduce, consider or pass any bills except those related to the the business for which the Legislature has been specially convened…. By contrast, the Nevada Constitution does not place any limitations on the Legislature’s power at a special session with regard to resolutions.”

And the money line: “Thus, because the term ‘resolutions’ is omitted from Article 5, Section 9 we believe that a reasonable construction of the 2012 amendment means that, at a special session convened by the Governor, the Legislature has the power to introduce, consider and pass any joint resolutions or other resolutions, regardless of whether the resolutions are ‘related to the business for which the Legislature has been specially convened.’”

Perhaps that’s why, of the myriad objections to the mining tax joint resolutions, none of the opponents objected that such a resolution would be inconsistent with the constitution.

If the joint resolution passes both houses in this special session, and then again during the regular session in 2021, voters could see it on their ballots in November 2022. As with all changes to the constitution, the people get the final say.

— Steve Sebelius

3 p.m., July 31

Assembly Bill 4 is an omnibus measure modifying election procedures during periods of declared emergency in Nevada, such as now, and if approved will apply to the November election.

More than 100 pages long in draft form, its numerous provisions are geared toward conducting a mostly-mail-only election. It makes it easier for people to vote without physically going to a polling place; creates more flexible procedures for accepting mail-in ballots, including the collection, or “harvesting,” of ballots for drop-off; and makes changes to help elections officials tabulate the vote.

It also allocates $2 million in federal pandemic assistance to pay for mail-in ballots for this year’s general election.

— Bill Dentzer

11:55 a.m., July 31

Nevada Democrats look poised to make another run at increasing taxes on mining companies after failing to do so in the first special session.

But this time, Democrats are targeting a direct increase to the 5 percent tax on net proceeds cap currently in the state constitution, a plan that also includes sending money from that tax directly to Nevadans similar to how Alaskans receive dividend payments from revenues generated from the state’s oil resources.

The Senate Republican Caucus sent out a copy of language for the proposed constitutional amendment Friday morning, and noted that it was posted to the Legislature’s website late Thursday night before it was taken down.

It would change how mines are taxed from a current cap of 5 percent of net proceeds to a 7.75 percent tax on gross proceeds.

Half of that revenue would go into a program under the state treasurer that would send money directly to Nevadans, based on criteria set up later by the Legislature.

The bill would also upend how mining taxes could be changed in Nevada.

Under the state constitution, any revenue increase requires a two-thirds vote in both houses to pass. The proposed change would make it so that any mining tax increase would require a simple majority vote. But it would also make it harder for future Legislatures to reduce those taxes, as it would impose a two-thirds supermajority vote to pass any decrease in the tax rate.

In a statement, Sen. Pete Goicoechea, R-Eureka, said that the changes “will kill small mines throughout Nevada.”

Constitutional amendments proposed by the Legislature have to be approved in two sessions. Lawmakers have never tried to pass a constitutional amendment in a special session.

Legislative Counsel Bureau Director Brenda Erdoes, speaking on another bill, noted that any constitutional amendment passed during this special session would then go to the next session in 2021 for a second required approval. That means that the mining tax could be on the ballot for voters as early as 2022.

Democrats tried to pass a bill in the first special session earlier this month that would have reduced the amount of deductions mining companies could claim. The bill needed two-thirds approval in both houses since it directly increases state revenue, but fell one vote short in the Senate.

— Colton Lochhead

11:25 a.m., July 31

The very first votes of the special session — the ordinarily routine approval of the rules that govern procedures — were partisan divides. Assembly Resolution 1, and its counterpart, Senate Resolution 1, contained provisions that allow lawmakers to participate using remote technology, and public comment to take place electronically, too.

The legislative building is closed to the public, with only lawmakers and key staff allowed inside due to coronavirus. Most lawmakers were physically present in the building, however.

Assembly Minority Leader Robin Titus in the Assembly and Senate Majority Leader James Settelmeyer in the Senate both insisted on roll call votes for the rules, which are normally approved on voice votes alone.

In the Assembly, the vote was 29-12, with all Republicans voting no. (Republican Assemblyman Chris Edwards was absent.) In the Senate, the vote was 13-7, with Republican Sen. Keith Pickard absent.

In a news release, Senate Republicans decried the rules as a power grab.

“It’s clear that unilateral control over the executive and legislative branches of government is simply not enough power for Nevada Democrats,” Settelmeyer said in a statement. “These rule changes cast aside the standards of legislative process that have been in place since statehood because the majority party can’t be bothered to respect the traditions of the Nevada Senate.”

Specifically, he complained that:

— A rule that allows only the majority leader to request amendments to bills.

— A rule that allows for fast tracking constitutional amendments without waiting the traditional three days to allow the public to see the changes. (It should be noted, however, that any proposed amendment must be approved by another entire session of the Legislature after the next election, and then must be approved by voters, so there will be time for the public to examine the proposed changes.)

His concern centers on a proposal that would amend the constitution to allow for an increase in mining taxes.

— Remote participation and voting. “Accountability to your constituents is a hallmark of representative government,” said Senator Heidi Gansert. “Remote voting from outside the state diminishes the ability of your constituents to reach you and offer their thoughts on bills being considered by the legislature. This undermines our form of government.”

— Steve Sebelius

11 a.m., July 31

Of the three other bills thus far introduced (see the special session website), Assembly Bill 1 makes technical corrections to three bills passed in the 2019 session — one restoring voting rights to convicts immediately upon release from prison, the second extending the time frame for tenant evictions, and the third regulating internet business lenders.

Assembly Bill 2 makes changes to allow lawmakers attend and participate in interim committees remotely, and creates penalties for people who try to hack or otherwise interfere with remote meetings. (Rules for regular and special sessions are set by the Legislature when they convene.)

More significantly, it expedites how proposed constitutional amendments approved by lawmakers in special sessions convened in election years move to the ballot. Normally, such proposals must be approved by successive legislatures, which convene in odd-numbered years.

The intent of the change is to permit any proposed constitutional amendment approved in this session to get to the ballot in 2022, not 2024.

Finally, Senate Bill 1 authorizes courts to stay eviction proceedings for up to 30 days in favor of an alternate dispute resolution.

— Bill Dentzer

10 a.m., July 31

Happy Special Session day, everyone! We’re just about underway here in Carson City for the second special session, this time focused on a slew of policy issues.

Several bills have already been unveiled, the most notable of which is Assembly Bill 3, a sort of omnibus police reform bill.

In the wake of the national outrage over the death of George Floyd, a black man who died after a Minneapolis police officer kneeled on his neck for nearly 9 minutes, the bill would ban police use of choke holds or any maneuver that restricts a the flow of blood to a person’s brain.

That ban would seemingly encompass the controversial lateral vascular neck restraint, which came under scrutiny in Las Vegas after the 2017 death of Tashii Brown, who died after a Las Vegas police officer put him in a similar hold for more than a minute. Police recently approved a $2.2 million settlement for Brown’s family.

AB 3 would also allow people to keep their cellphones and continue recording their interactions with police.

The bill would also require police officers to intervene if they see excessive force being used by a fellow officer. That “duty to intervene,” is already required by policy for most of Nevada’s large police departments.

— Colton Lochhead