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Gov. Steve Sisolak delivers the State of the State address at the Nevada Legislature on Wednesday, Jan. 16, 2019. (David Calvert/The Nevada Independent)

With less than a week before oral arguments on a major payroll tax lawsuit, lawmakers again publicly split along party lines over the role of the Legislature’s legal division in the case.

The dispute came during a Thursday meeting of the Legislative Commission — an interim body that reviews and approves regulations by state agencies — to approve a short resolution that essentially ratifies a decision made by the body in December to appeal a lower court’s decision barring legislative attorneys from participating in the case. 

Though largely technical, the debate over adopting the resolution elicited sharp comments and again highlighted divisions between lawmakers over the nonpartisan legal division’s role in the lawsuit filed by Republican state senators.

The oral arguments before the state’s Supreme Court are scheduled for Tuesday, but will not address the initial conflict, brought by state Senate Republicans in July over a pair of bills — one removing a scheduled decrease in a payroll tax and another extending a $1 per transaction DMV technology fee — passed during the 2019 Legislature with less than a two-thirds majority, which is constitutionally required for any tax increase. 

Rather, the arguments will deal with the ability of legislative attorneys to represent the Legislature in a lawsuit brought by another group of legislators — an appeal granted through an affirmative, party-line vote by the Legislative Commission in late December, after legislative attorneys warned that failing to appeal could muck up the legislative branch’s legal system.

At the time, the commission granted the Legislative Counsel Bureau’s legal division full authority to appeal Carson City Judge James Russell’s decision to disqualify the division from representing individual legislators in the payroll tax lawsuit. After filing the appeal, the state Supreme Court granted a temporary stay on the initial lawsuit.

LCB attorney Kevin Powers told lawmakers that a resolution affirming the vote taken by the commission in December was necessary “to remove any doubts” about the vote and subsequent actions taken by legislative attorneys, which had been called into question as being improperly authorized in filings recently made in the state Supreme Court.

The resolution recaps the history of the lawsuit and seeks to “(remove) any doubts regarding its authorization” to appeal the lower court’s decision and endorsed the legal division’s decision “to seek, commence and prosecute the mandamus appellate review action.”

But Republican lawmakers chafed at having to take another vote on essentially the same topic they had voted on in a meeting two months ago, hinting that the resolution was a way to cover for the potentially overly broad directive given to legislative attorneys through the commission’s vote in December.

“This is the first time I’m voting on a motion where I don’t have a clue what the ‘take away action’ is,” Republican state Sen. Joe Hardy said. “And I think it’s the wrong way to make a motion.”

Fellow Republican state Sen. James Settelmeyer agreed, saying he was bothered by the vote and that it was “trying to solidify or justify something that was done in a previous meeting.”

Powers said it was “clear” from the December meeting that an appeal would be filed in the state’s high court, and that the resolution was a procedural step to avoid the case being dismissed on non-relevant issues.

“However, to remove any possible shadow of a doubt, to be acting out of an overabundance of caution and to ensure that the Nevada Supreme Court gets to the merits of the disqualification issue instead of being sidetracked by jurisdictional issues that were argued without any citation to authority, the goal here is to simply ratify the clear action that occurred on December 30th at the legislative commission meeting,” he said.

The comments were enough to elicit a pointed response and defense of the legal division by longtime legislator and Democratic Assemblywoman Maggie Carlton, who said it was “quite insulting” to hear insinuations that the legal division was taking sides in the case.

“This is about the institution that was drilled into me when I was first elected,” Carlton said. “No matter what you do, you have a title in front of your name and you are to respect the institution. I believe in recent history a couple members of our institution have lost that perspective. And to say that the LCB is taking one side over another, I find quite insulting to our institution.”

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