Teachers ask judge to dismiss lawsuit challenging tax initiative

The teachers' union has asked Carson District Judge Michael Griffin to dismiss a lawsuit challenging the constitutionality of their business tax initiative.

The 21-page motion describes the legal challenge as "a series of assertions about the constitutional validity of the initiative unsupported by anything in the way of admissible evidence or legal analysis."

The lawsuit by the Nevada Pro-Education Alliance seeks an order blocking the initiative from forcing lawmakers to impose a 4 percent tax on Nevada businesses. It says the proposed business tax is a flawed, unfair and thinly disguised personal income tax which is barred by the Nevada Constitution. That association represents several hundred Nevada businesses and groups including the Carson, Douglas, Las Vegas and Greater Reno chambers of commerce.

The motion asks that the lawsuit be dismissed.

The secretary of state certified the initiative petition after ruling it included 63,000 valid signatures of Nevada voters. Unless the legal challenge blocks it, the proposed business tax will be placed before the 2001 Nevada Legislature for action.

If lawmakers fail to pass it, then it will be put on the 2002 general election ballot for voters to decide.

The initiative's business tax is designed to raise some $250 million a year dedicated to public education.

In the response, teachers argue state and federal courts have repeatedly held that initiatives are "cloaked in the presumption of constitutionality" and must be given broad latitude to prevent any actions that would disenfranchise the electorate.

They specifically quote a 50-year-old Nevada Supreme Court case which says ballot questions should be enjoined "only where a plain, palpable violation of the constitution is threatened."

They say opponents fail to show any such violation in their lawsuit because the initiative would impose a business tax which is clearly permitted by Nevada's constitution.

The dismissal motion filed this week says that even if a business can cite certain examples where the proposed tax would apply unequally to different businesses, that doesn't make it unconstitutional. If that were the case, the teachers argue, the entire IRS code would have to be thrown out.

The motion filed by the law firm of Dyer, Lawrence, Cooney & Penrose of Carson City says the initiative is "explicitly designed to tax business income to the extent permitted by the constitution - but only to that extent."

"Accordingly, even if the court were to accept plaintiffs' personal income argument in its entirety, the initiative can still be implemented in a manner that is consistent with the constitution."