Paraphrasing the great Mark Twain, reports of the death of the We Decide Coalition’s referendum to repeal the largest tax hike in Nevada history – including that new gross receipts tax – have been greatly exaggerated.
While it’s true that on October 1, 2015, Carson City District Court Judge Todd Russell did rule that our original filed referendum violated the single-subject rule, as well as “description of effect” requirements, there’s a huge problem with his ruling.
He never should have heard the case in the first place.
On September 11, 2015, I filed a Petition for Removal with the federal court in Clark County, alleging constitutional infringements on our right to petition the government, as well as other First Amendment rights. Notice of that request to remove the case from Judge Russell’s court was promptly and properly filed with the court clerk and opposing counsel.
And that’s where sub-section (d) of section 1446 of title 28 of the United States Code Service comes into play. It reads, in part…
“Promptly after the filing of such notice of removal of a civil action, the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect removal and the State court shall proceed no further unless and until the case is remanded.”
“…and the State court shall proceed no further…”
Pretty clear, even to a layman.
Nevertheless, at 2:30 pm on October 1, 2015, Judge Russell willfully conducted his hearing knowing a Petition for Removal had been filed, knowing that it had not been remanded (returned) to his court, and knowing that I would not be there.
Judge Russell, clearly itching to rule against the referendum, opened the hearing by asking the attorneys for the tax hikers if they thought he could hold the hearing even though he acknowledged the rule that he should “proceed no further.”
This was like a pregnant schoolteacher suffering from an insatiable and over-powering craving for ice cream asking a room full of second-graders if they’d like to go to Baskin Robbins for lunch.
Naturally, the attorneys for the tax hikers then proceeded to argue that the hearing could go forward despite the clear prohibition on doing so, venturing opinions as to why the federal court had no business interfering with their business.
The problem is it’s not their opinion that counts. It’s the opinion of the federal court judge who was assigned my Petition for Removal. And at the time of the writing of this column, the federal judge has not yet ruled.
As the saying goes, it ain’t over ‘til it’s over. And despite all the media reports to the contrary, this tax repeal referendum ain’t over.
P.S. Judge Russell’s action in this matter was so egregious, and resulted in such serious public relations damage to our referendum efforts, that I filed an official complaint against him this week with the Nevada Commission on Judicial Discipline.
His conduct clearly undermined the public trust and confidence in our judicial system. I mean if a judge doesn’t have to follow the rules, why should anyone else, right?
