Posts Tagged ‘Josh Hicks’

Nevada Supreme Court Hears Margins Tax Case

By Sean Whaley | 11:37 am December 5th, 2012

Attorneys for the teachers association and state business interests faced off before the Nevada Supreme Court today over whether a proposed margins tax initiative petition has met legal requirements and so should be submitted to the 2013 Legislature.

A Carson City district court judge earlier this year said the petition filed by the Nevada State Education Association to establish a 2 percent tax on companies making gross revenues in excess of $1 million a year was invalid because the 200 word “description of effect” was incomplete. It did not specify how much revenue the tax would generate, said Judge James Wilson in a ruling in October.

A group called The Committee to Protect Nevada Jobs challenged the petition. The teachers association appealed to the Nevada Supreme Court, which heard oral arguments in the dispute today. The court, which met in Las Vegas, will rule later on the matter.

Nevada Supreme Court.

Despite the lower court ruling, the association last month turned in 152,000 signatures, more than double the required number to qualify the petition for consideration by the Legislature.

If the petition is found by the court to have satisfied state legal requirements, the Nevada Legislature will be required to take up the proposal when it convenes in February. The Legislature would then have 40 days to approve the proposal or it would go to the voters in 2014.

The proposed Texas-style margins tax would raise an estimated $800 million a year for public education.

Justice Ron Parraguirre asked whether it is a material effect that a business could face a loss and still be required to pay the tax.

“Isn’t that a material effect that ought to be disclosed?” he said.

Francis Flaherty, attorney for the teachers, told the court the backers of the measure should not be subjected to a “judicial slot machine” where decisions on what to include in the description are subjected to second guessing by the judiciary.

“You’ve only got 200 words,” he said.

Flaherty called the petition “core political speech” that the Supreme Court has said in previous rulings it must do “everything in its power to uphold.”

Justice Michael Douglas asked attorney Josh Hicks, representing The Committee to Protect Nevada Jobs, how the court is expected to pick and chose what to include in the description given the complexity of the proposal, which totals 22,000 words.

Hicks said the 200-word description could very easily be written to be accurate for those asked to sign the petition. He said an accurate description is a fundamental protection to ensure potential signers of the petition know what the measure would do. There is no guarantee that the tax proposal will generate any additional money for public education, which is a material fact that should have been disclosed, he told the court.


Audio clips:

Attorney Francis Flaherty says the description of effect satisfies state law:

120512Flaherty :14 got 200 words.”

Attorney Josh Hicks says there are no guarantees the proposal will increase education funding:

120512Hicks :23 change in it.”




Carson Judge Will Rule Later On Challenge To Teacher-Backed Margin Tax Petition

By Sean Whaley | 10:59 am October 12th, 2012

CARSON CITY – A Carson City District Judge today heard the latest challenge to a teacher-backed initiative petition that seeks to levy a 2 percent tax on companies making gross revenues in excess of $1 million a year to raise money to support public education.

But Judge James Wilson did not immediately rule on challenges to the “Education Initiative” filed by the Committee to Protect Nevada Jobs.

Carson City District Judge James Wilson.

Josh Hicks, an attorney representing the committee, said regardless of how Wilson rules, the legal issues raised in the court hearing will likely be taken to the Nevada Supreme Court for a final ruling.

In the meantime, the Nevada State Education Association is continuing to gather signatures to qualify the measure for submission to the Legislature in 2013.

Gary Peck, executive director of the association, said between 55,000 and 60,000 signatures have been collected so far from registered voters to qualify the petition. The group has until Nov. 13 to collect a minimum of 72,352 signatures to take the measure to lawmakers. The Legislature would then have 40 days to approve the proposal or it would go to the voters in 2014.

The proposed Texas-style margins tax would raise an estimated $800 million a year for public education.

“We remain confident that at the end of the day, the initiative is going to withstand this legal challenge,” Peck said. “We are certainly going to continue to gather signatures. We have received enthusiastic widespread support from the public.

“We have a study, conducted by Applied Analysis, that shows the costs that would be associated with failing to properly invest in K-12 education here in Nevada,” he said. “And I think the general public understands that if we want to have a thriving diverse economy where we have the kind of high-skilled workforce that we need to attract businesses, we need to be investing in our public schools. And we don’t do that.”

Hicks raised several legal issues during the brief court hearing, challenging whether the petition conforms to requirements that it deal with a single subject and if it offers a clear explanation about what it does. He questioned whether the 200-word description of effect adequately explains to those signing the petition what it would do.

Wilson said he too has concerns about the description of effect.

Francis Flaherty, attorney for the teachers, rejected Hick’s concerns.

“There is nothing hidden in this initiative, your honor,” he said.


Audio clips:

Teachers Association Executive Director Gary Peck says he is confident the initiative petition will be upheld:

101212Peck1 :21 from the public.”

Peck says the association has a study showing the consequences of not properly investing in public education:

101212Peck2 :30 don’t do that.”


Margin Tax Initiative Petition To Fund Education Awaits Ruling By Carson City District Judge

By Sean Whaley | 5:35 pm July 31st, 2012

CARSON CITY – Carson City District Judge James Wilson heard arguments today but delayed ruling on whether an initiative petition filed by the state teachers association to raise an estimated $800 million a year for education via a new margin tax is too flawed to go forward.

Wilson said after a brief hearing that he will issue a decision “as soon as possible.”

Attorney Josh Hicks, representing the Committee to Protect Nevada Jobs, argued that the petition filed with the Secretary of State’s office by the Nevada State Education Association violated a rule for such measures requiring they deal with a single subject.

He also argued that the 200-word description of effect for the complex 26-page proposed margin tax on larger Nevada businesses was misleading. Nevada residents who would be asked to sign the petition to take the proposal to the Legislature in 2013 need to know what the measure would do, Hicks said.

Carson City District Judge James Wilson.

The description of effect does not, for example, include mention that the names of the businesses paying the tax, and the amount they would pay, would have to be published on a website by the Department of Taxation for the public to review, a change to current confidentiality statutes, he said.

This provision generated a number of questions from Wilson directed to James Penrose, the attorney defending the petition on behalf of the teachers association.

Hicks also argued that the proposal violates a constitutional requirement that it provide enough revenue to pay for its implementation. A fiscal note for the proposal indicates that not enough money has been identified to pay for the costs to the Tax Department to implement the new levy, he said.

Hicks questioned whether what the teachers association calls the “Education Initiative” is misleading because there is no guarantee that funding for public education would increase if it became law.

Penrose argued that the petition is straight forward, seeking to impose a new tax to raise money for public education. It would levy a 2 percent tax on companies making gross revenues in excess of $1 million a year. The money would be deposited in the Distributive School Account to fund public education, he said.

Penrose said the description of effect does not have to be perfect, but has to give those who might sign the petition a clear idea of its intent, which the proposal does.

Lynn Warne, president of the NSEA, said after the hearing that the group has yet to begin gathering signatures to qualify the measure to take to the Legislature. The group has until Nov. 13 to collect can collect 72,352 signatures to take the measure to lawmakers. The Legislature would then have 40 days to approve the proposal or it would go to the voters in 2014.

Warne said the association will wait until Wilson’s ruling to decide whether to begin collecting the needed signatures, even though any decision could be appealed to the Nevada Supreme Court.

If elements of the petition are rejected by Wilson, the petition can be revised and re-filed so that the signature gathering effort can begin, she said.

Gary Peck, executive director of the association, said the group expects its effort to be successful.

“I think it would be fair to say that we remain confident that, at the end of the day, the initiative will withstand a legal challenge,” he said. “We remain confident that it will qualify because the residents of the state of Nevada understand how inadequate the funding for K-12 education is, and they will be persuaded that this is a way to fix the problem.”

Hicks said he could not predict what Wilson’s ruling will say.

“The judge gave it a full, fair hearing and that’s all anyone can ask for,” he said.


Audio clip:

Gary Peck, executive director of the teachers association, says the effort to impose the tax will be successful and supported by Nevada residents:

073112Peck :29 fix the problem.”


Group Representing Nevada Businesses Files Court Challenge To Teacher-Backed Margin Tax

By Sean Whaley | 10:35 am June 26th, 2012

CARSON CITY – The Committee to Protect Nevada Jobs filed a lawsuit today against the “Education Initiative” (margin tax Initiative) charging that that the petition’s description of effect is deceptive and incomplete and that it violates the single-subject rule.

The complaint was filed in Carson City District Court.

“From the title on down, the initiative is deeply flawed and misleading,” said Josh Hicks, of Brownstein Hyatt Farber Schreck, the attorney for the Committee to Protect Nevada Jobs. “The initiative has nothing to do with education and includes many aspects that are not mentioned in the initiative’s description. We believe that as written, this initiative violates Nevada law.”

The complaint notes that the 26-page “Education Initiative” mentions education only once in its description of effect and that it makes no provision for requiring that education funding be increased over current levels by “even a penny.”

The complaint also notes that the petition’s terms allow for a decrease in classroom funding, which would be an “unpleasant surprise” to Nevadans who sign it.

The Nevada State Education Association filed its petition with Secretary of State Ross Miller on June 6. It would levy a 2 percent tax on companies making gross revenues in excess of $1 million a year.

NSEA President Lynn Warne said at the time the tax would bring in an estimated $800 million a year from large Nevada corporations. She also said the petition is expected to withstand any legal scrutiny.

NSEA President Lynn Warne answered questions about the margin tax proposal when it was filed June 6. / Photo: Nevada News Bureau.

Hicks said the initiative imposes a margin tax on businesses and increases the size of the Nevada Department of Taxation, a multi-million dollar government agency, to administer and audit the new tax.

“The petition’s title and description of effect will confuse Nevada voters and mislead them into signing a petition that does not do what it purports to do and that does do many things that are hidden from view,” he said.

As an example, Hicks noted that the description of effect makes no mention that taxpayer information will be posted on the internet in clear violation of taxpayer privacy rights guaranteed by Nevada law since 1979. In addition, the complaint notes that the description does not mention that even unprofitable and failing businesses that are losing money will still be subject to the tax and that “an increased taxation on failing businesses is certainly not going to improve the unemployment rate.”

“Quite clearly, this initiative is designed solely to increase general tax revenues and to take advantage of citizen’s concerns about education in order to mislead them into signing the petition and, later, into voting for it,” Hicks said. “Nevada law is quite clear in prohibiting such deceptions.”

The Committee to Protect Nevada Jobs is supported by a variety of Nevada organizations including: the Nevada Taxpayers Association; Retail Association of Nevada; Charles Baird; Las Vegas Chamber of Commerce; The First National Bank of Ely; Nevada Farm Bureau Federation; The Chamber; Nevada Manufacturers Association; Nevada Bankers Association; Nevada Petroleum Marketers Association; Nevada Franchised Auto Dealers Association; National Federation of Independent Business ; Nevada Trucking Association; Financial and Intangible Assets Enterprises of Nevada ; Las Vegas Sands Corporation; Keystone Corporation; and Nevada Chapter, Associated Builders and Contractors.


Nevada Attorneys and Candidates for Attorney General Debate Legalities of Health Care Reform Lawsuit

By Elizabeth Crum | 4:59 pm April 7th, 2010

Four attorneys with ties to the issues and parties of Nevada’s health care reform lawsuit gave their perspectives to media and political bloggers during a Nevada News Bureau-hosted conference call this afternoon.

Mark Hutchison, lead counsel for Governor Gibbons’ newly retained pro-bono team, said he plans to participate in a conference with US District Court Judge Roger Vinson next week as part of the process to join Florida and other states in an amended complaint challenging the federal government on provisions in the recently passed health care legislation.

Hutchison said Indiana, North Carolina, Mississippi and Arizona have all now announced their intention to join the Florida lawsuit.

“The suit will be based primarily on 10th amendment challenges, unapportioned tax issues and the unconstitutionality of the individual mandate to purchase health insurance,” said Hutchison.

Jacob Hafter, an attorney and Republican candidate for state Attorney General, predicted a “long process” and speculated that Nevada will face additional legal issues and public outcry when taxes and penalties for not complying with health care reform mandates are levied and fully realized by citizens.

Hafter said he believes the Attorney General has been “derelict in her duties” and that her refusal to cooperate with the Executive Branch has created a liability that may be punishable as a misdemeanor under state law.

Hafter also said he today received confirmation from a reliable source inside the Nevada State Bar that a formal ethics complaint has been filed against the Attorney General for violations of attorney-client privilege when she disclosed certain pieces of information in her publicized response and explanation letters to Governor Gibbons.

Joel Hansen, an attorney and the Independent American Party candidate for Attorney General, disagreed with his colleagues and said he believes it is a violation of state law for the Governor to go outside the Attorney General’s office in order to pursue health care reform lawsuit.  Hansen said in his opinion, the correct legal avenue for the governor to take would be to call a special session of the legislature asking them to order the Attorney General to follow his instructions, just as the governor of Arizona did last week.

Hutchison disagreed with Hansen and said his interpretation of Nevada statues is that the Executive Branch is within its rights to retain outside, pro-bono counsel in certain instances.

“The Attorney General is not necessarily the chief legal officer for this kind of lawsuit,” Hutchison said, arguing this is so in part because the suit will be prosecuted against the federal government in a court in another state.

“And if the Attorney General can appoint subordinate counsel at her own discretion,” Hutchison added, “Surely the Executive Branch retains that same right.”

Attorney and former General Counsel and Chief of Staff to the Governor, Josh Hicks, said there are good arguments on both sides of the issue and said a question like this has never before “come to a head” for the state. Hicks said that among other things, the disqualifying language in the statues must be examined.

“Is a refusal to prosecute a disqualification of the Attorney General?” he asked.

Hicks added that “the implied authority for the Governor to have his own counsel, especially if coming out of his agency and budget” is also at issue.

“It will be very interesting to see what the Attorney General does next,” he said.

Hansen reiterated that in his opinion the language in the statues is clear and the Attorney General is within her rights to say the Governor has wrongfully “employed” counsel outside her office.

“However, if I were the governor, I would also look at statute 228.210 which says the Attorney General is obligated to pursue this matter because he has directed her to do so,” said Hansen.  “If she fails to perform that duty, she is guilty of a misdemeanor.”

Hafter agreed but added that, in his view, “There is a perhaps an ability for the Attorney General to commit malfeasance with no way of being called to task other than to be voted out in November.”

“Which at least two of us on this call are hoping happens,” he joked.

“I do think it would be appropriate for the legislature to address this matter of the Attorney General’s obligation to the Executive Branch,” Hafter said.

Hicks referred to a case in Georgia in which there has been some talk of impeachment of the Attorney General for refusing to follow the governor’s order.

“But that is all unchartered territory here in Nevada,” Hicks said. “And I think it’s an unlikely scenario.”

Hutchison said if the Attorney General brings a complaint and seeks injunctive relief and the governor pushes forward, the matter could “quickly” end up in the state Supreme Court.

Governor’s Pro-Bono Attorney Mark Hutchison Says Attorney General is Legally Obligated to Do as Gibbons Directs

By Elizabeth Crum | 8:09 am April 7th, 2010

Here are some quick excerpts from Las Vegas attorney Mark Hutchison’s appearance on the Heidi Harris show on KDWN this morning.  On whether the Attorney General is able to Just Say No to a health care reform lawsuit:

The Attorney General represents the Executive Branch of the state, which includes following the direction of the Governor.

According to NRS  228.170, “Whenever the Governor directs or when, in the opinion of the Attorney General, to protect and secure the interest of the State it is necessary that a suit be commenced or defended in any federal or state court, the Attorney General shall commence the action or make the defense.”

So when the governor decides the interests of the state are at issue, he can direct her.

On why the governor is so avidly pursuing this matter rather than do as the AG suggested and ride the coattails of other states:

One of the reasons the Governor feels he must purse the suit is that he cannot surrender his constitutional obligation to the state…cannot abdicate that responsiblity.

Re: what happens next and whether other states are expected to join the lawsuit:

We are meeting with the judge next week.  I think an amended complaint will be filed, perhaps 4/5 more states will join.

On the individual mandate to purchase health insurance and the often-used argument that states require all of us to buy auto insurance, Hutchison said (1) states have broad plenary and police power that the federal government does not, (2) requiring people to carry auto insurance is regulating activity (i.e. owning and driving a car) whereas requiring citizens to have health insurance is regulating inactivity (the choice to sit at home and do nothing), and (3) with car insurance, by law you are only required to cover liability insurance for the protection of others, not to carry insurance on yourself.

Hutchison, along with Josh Hicks, the Governor’s former Chief of Staff and General Counsel, and Joel Hansen, attorney and IAP candidate for Attorney General, will be holding a statewide conference call moderated by the Nevada News Bureau later this afternoon to discuss issues related to health care reform legislation with invited Nevada media.