No One Asked Me But… (October 24, 2018)

By DR. LARRY MOSES

No one asked me but… Actually a number of people have asked me about the coming election and how I felt about the candidates and the ballot questions. In the next couple of weeks, I will review the six question on the ballot and, for whatever it is worth, will render an opinion. Let me emphasize the information in this and subsequent columns are merely that, opinion. I will review the questions and then give a yes or no on each. I must qualify my conclusions with the fact that I generally feel most laws should be established by our elected representatives and should be reflected in the Nevada Revised Statues. The State Constitution should be reserved for general precepts that are defined in State Law, developed and passed in the House and Senate, and approved by the Governor.

Question #1: Shall the Nevada Constitution be amended to: (1) remove existing provisions that require the Legislature to provide certain statutory rights for crime victims; and (2) adopt in their place certain expressly stated constitutional rights that crime victims may assert throughout the criminal and juvenile justice process?

This question is modeled after “Marsy’s Law” approved by California voters to be included in the California Constitution in 2008. As one considers the Nevada law, one must get past the Californication of Nevada biases and look at the question on its own merit.

In reviewing Question One, you will find sixteen explicit statements of law that will be added to the Nevada Constitution. While I find little harmful, with the exception of how one defines who is a victim and how provision 5 would be interpreted my contention is that these are legislative matters not Constitutional issues.

Under the constitutional provision that now exists, a victim is a person against whom a crime has been committed or who has been injured or killed as a direct result of the commission of a crime. Under Question One, a victim is any person directly or indirectly and proximately harmed by the commission of a criminal offense under any law of the state. This new amendment would deal with the victimization of those less than 18 years of age, those incompetent, incapacitated or deceased, the legal guardian of the victim, or a representative of the victim’s estate, member of family or any other person appointed to act on behalf of the person. This enforces the idea that everyone is a victim.

Provision 5 “the right to refuse an interview or deposition request, unless under court order, and to set reasonable conditions on the conduct of any such interview to which the victim consents,” has brought about the debate on whether or not it abridges the principle of assumption of innocence that is a base doctrine of American law. This could be interpreted in a manner leading to a violation of the United States Constitutional right “…to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witness in his favor…” Those who would support this ballot question says it does not. Those who oppose disagree, as they feel that it allows victims to prevent disclosure of information or refusal to participate in interviews or disposition that could cause those wrongful accused of crimes being denied access to information proving their innocense.

Other than denial of due process and the universal victimization, my major concern is the fact that it will become part of the State Constitution. Any modification to the provisions stated will require the amending process rather than merely changes in legislation. I would contend that these are legislative issue not constitutional issues. Most of the benefits of Question One are already addressed in the State Constitution or by legislation. The amending process is cumbersome and requires an inordinate amount of time. The State Constitution should be reserved for overriding principles and we should let the legislature do its job by passing laws that will cover the issues found in Question One. I will vote NO on Question One.

Question #2 and #4 are similar as they both deal with the removal of taxes from items that have been identified as medical in nature. However, they differ in that Question Two is making a change to a law established by an earlier referendum and Question Four is attempting to amend the State Constitution.
Question 2: “Shall the Sales and Use Tax Act of 1955 be amended to provide an exemption from taxes imposed by this Act of the gross receipts of the sale and the storage, use or other consumption of feminine products?”

Since the Sales and Use Tax of 1955 was approved by referendum, the act cannot be amended, annulled, repeal or set aside, suspended, or in any way made inoperative unless approved by voters at an election. This is the major problem with legislation by referendum, adjustments cannot be made when necessary. There is a State Constitutional requirement that when an act for tax exemption is passed, it must include a termination date. This referendum would end on Dec. 1, 2028.

This situation is the epitome of why a state should not legislate by referendum. Had the Sales and Use Tax Act of 1955 been passed by the legislature, it could have been amended by the present legislature and would not have had to go through the referendum process. I will vote NO on Question Two.

Question 4 states: “Shall Article 10 of the Nevada Constitution be amended to require the Legislature to provide by law for the exemption of durable medical equipment; oxygen delivery equipment, and mobility enhancing equipment prescribed by a licensed health care provider any tax upon the sale, storage, use, or consumption of tangible personal property?”

I would again state my apprehension of legislating by Constitutional Amendment. While I can see the appeal to remove tax from medical devices, I believe it should be done through the legislative process. I will vote NO.

I will, however, encourage my legislators to develop and support a bill that would allow for the removal of taxes on items listed in Question 2 and 4. If the taxes are removed, it is estimated there will be a loss of $75 to over $100 million dollars in tax revenue for the State. This will have to be made up by raising taxes elsewhere.

Thought of the week… REFERENDUM, n. A law for submission of proposed legislation to a popular vote to learn the nonsensus of public opinion.
– Ambrose Bierce