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The outside of the Nevada Legislature, seen on March 18, 2019. (David Calvert/The Nevada Independent)

A Clark County judge has ruled that a supermajority provision in the state Constitution does not apply to a law that froze the growth of the Opportunity Scholarship program

The program, created in 2015 under Republican leadership, allows businesses to donate money toward approved scholarship organizations, which, in turn, provide students up to $8,000 to attend private schools. Businesses then receive a tax credit.

The Democrat-controlled Legislature in 2019 passed Assembly Bill 458 along party lines. The new law modified the program by freezing the annual credit cap at $6.655 million and eliminating the annual 10 percent increase. Before the bill’s passage, lawmakers asked the Legislative Counsel Bureau whether the Constitution’s supermajority provision for revenue increases applied to the situation.

The LCB delivered its opinion in a letter dated May 8, 2019, saying the provision did not apply.

But parents of scholarship-recipient students, business donors and scholarship organizations filed a lawsuit in August against the state, Superintendent Jhone Ebert, the Nevada Department of Taxation and tax commissioners. The complaint argues the two-thirds rule applies.

Ultimately, the court disagreed, saying the intent of the supermajority provision is to limit the Legislature’s ability to raise new taxes or increase the tax rate of existing taxes. The plaintiffs had based their argument around the phrase “any public revenue in any form” within the provision.

“Likewise, AB458 does not raise new taxes, or increase existing taxes; rather, it removes or freezes the subsection 4 scholarship credit available from already levied (Modified Business Tax),” according to the court’s minute order. “If the word ‘any’ is given the broad interpretation as suggested by the Plaintiffs, it would mean that revenue increases resulting from Nevada’s population and business growth would also require invoking the Nevada Supermajority Provision.”

The plaintiffs plan to appeal the decision to the Nevada Supreme Court, said Tim Keller, a senior attorney with the Institute for Justice, a libertarian public interest law firm based in Arlington, Virginia that is assisting with the suit.

The story was updated on 5/5/2020 at 10:14 a.m. to include the plaintiffs' plan to appeal.

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