Cegavske v. Hollowood

• Decision Date: 28 June 2022
• Docket Number: 84420
• Citation: 512 P.3d 284
• Parties: Barbara K. CEGAVSKE, in Her Official Capacity as Nevada Secretary of State, Appellant, v. Robert HOLLOWOOD, an Individual; Kenneth Belknap, an Individual; Nevadans for Fair Gaming Taxes PAC, a Nevada Committee for Political Action; Fund Our Schools PAC, a Nevada Committee for Political Action; Nevada Resort Association, a Nevada Nonprofit Corporation; Greater Las Vegas Chamber of Commerce, d/b/a Vegas Chamber, a Nevada Nonprofit Corporation, Respondents.
• Court: Nevada Supreme Court

512 P.3d 284

Barbara K. CEGAVSKE, in Her Official Capacity as Nevada Secretary of State, Appellant,

v.Robert HOLLOWOOD, an Individual; Kenneth Belknap, an Individual; Nevadans for Fair Gaming Taxes PAC, a Nevada Committee for Political Action; Fund Our Schools PAC, a Nevada Committee for Political Action; Nevada Resort Association, a Nevada Nonprofit Corporation; Greater Las Vegas Chamber of Commerce, d/b/a Vegas Chamber, a Nevada Nonprofit Corporation, Respondents.

No. 84420

Supreme Court of Nevada.

FILED JUNE 28, 2022

Great Basin Law and Wayne O. Klomp, Reno, for Appellant.

Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Bradley S. Schrager, Daniel Bravo, and Eric Levinrad, Las Vegas; McLetchie Law and Margaret A. McLetchie, Las Vegas, for Respondents Robert Hollowood, Kenneth Belknap, Nevadans for Fair Gaming Taxes PAC, and Fund Our Schools PAC.

Lewis Roca Rothgerber Christie LLP and Joel D. Henriod, Daniel F. Polsenberg, Abraham G. Smith, and Kory J. Koerperich, Las Vegas, for Respondents Nevada Resort Association and Greater Las Vegas Chamber of Commerce.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, STIGLICH, J.:

This appeal involves two verified initiative petitions to place questions on the ballot for the Nevada 2022 general election and the sponsors’ withdrawal of the initiative petitions. Although Nevada law provides a procedure to withdraw an initiative petition and directs that "no further action may be taken on [a withdrawn] petition," NRS 295.026(2), Secretary of State Barbara Cegavske refused to honor the withdrawals of the two petitions at issue here. The sponsors then sought and obtained writs of mandamus and prohibition from the district court to compel her to recognize the withdrawals and thereby prevent the questions from appearing on the 2022 ballot. The Secretary of State appeals, arguing that the statute setting forth the withdrawal procedure, NRS 295.026, is unconstitutional. We conclude that NRS 295.026 is a permissible exercise of the Legislature's power to enact statutes to facilitate the people's initiative power and is thus not unconstitutional. Because the statute compels the Secretary of State not to act on the withdrawn initiative petitions, the district court properly issued a writ of mandamus compelling the Secretary not to act. But because the act of placing matters on a ballot is ministerial, it is not the sort of action that is subject to prohibition, and therefore the district court abused its discretion in issuing a writ of prohibition. We thus affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Respondents Robert Hollowood, Kenneth Belknap, Nevadans for Fair Gaming Taxes PAC, and Fund Our Schools PAC sponsored two initiative petitions for the purposes of funding education via an increase in Nevada sales tax and a tax on gaming. The initiative petitions listed Hollowood and Belknap as among the three individuals permitted to withdraw or amend each initiative petition. The sponsors obtained the required signatures and submitted them to the Secretary of State, who verified them and submitted the initiative petitions to the Legislature for consideration. The Legislature did not act on the initiative petitions but did reach an agreement to otherwise increase taxes to fund education. Thereafter, Hollowood and Belknap each filed a petition withdrawal form with the Secretary of State's office.

On request from the Governor's office, the Attorney General issued an opinion as to whether the Nevada Constitution prevents initiative petition sponsors from withdrawing a petition. The Attorney General opined that it did not. 2021-04 Op. Att'y Gen. The opinion (1) framed the Secretary of State's role as ministerial, (2) found no constitutional provisions limiting withdrawal of an initiative petition such that there was no direct conflict between the constitution and the statute, (3) interpreted NRS 295.026 as imposing a procedural right permitting sponsors to withdraw a petition, and (4) concluded that the Secretary's duty to place a matter on the ballot was owed to the sponsors and would be waived by the sponsors’ withdrawal of the petition. Id.

The Secretary disagreed with the Attorney General opinion, concluded that she had a constitutional duty to place verified initiative petitions on the ballot, and thus refused to recognize the sponsors’ withdrawal. The sponsors petitioned the district court for writs of mandamus and prohibition. Respondents Nevada Resort Association and Greater Las Vegas Chamber of Commerce successfully moved to intervene and joined in the petition. The district court concluded that NRS 295.026 permissibly expands initiative sponsors’ rights by providing a clear procedure and deadlines to withdraw a petition. The court further held that the Secretary's duty to place a matter on the ballot presupposed a valid petition and that a withdrawal consistent with NRS 295.026 makes the petition void and thus no longer valid, such that there was no further action for the Secretary to take. The district court therefore issued writs of mandamus and prohibition. The Secretary of State appeals.

DISCUSSION

A writ of mandamus may be sought to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station or to control an arbitrary or capricious exercise of discretion. NRS 34.160 ; State v. Eighth Judicial Dist. Court (Armstrong) , 127 Nev. 927, 931, 267 P.3d 777, 779 (2011). A writ of prohibition may issue if an individual exercising judicial functions or a tribunal acts in excess of its jurisdiction. NRS 34.320 ; Goicoechea v. Fourth Judicial Dist. Court , 96 Nev. 287, 289-90, 607 P.2d 1140, 1141 (1980). While this court reviews a district court decision to grant or deny a writ petition for an abuse of discretion, DR Partners v. Bd. of Cty. Comm'rs , 116 Nev. 616, 621, 6 P.3d 465, 468 (2000), questions of statutory or constitutional interpretation are reviewed de novo, Lawrence v. Clark County , 127 Nev. 390, 393, 254 P.3d 606, 608 (2011).

A writ of prohibition is not appropriate to bar the Secretary of State's ministerial action

We first resolve the Secretary's challenge to the writ of prohibition. The district court issued a writ of prohibition ordering the Secretary not to place the initiative petitions on the general election ballot. The Secretary argues that the order fails to identify any judicial or quasi-judicial functions being carried out and is therefore deficient. We agree and reverse the portion of the order granting a writ of prohibition.

In addition to barring the extrajurisdictional exercise of judicial power, a writ of prohibition may be issued to curtail the inappropriate exercise of quasi-judicial power, Mineral County v. State, Dep't of Conservation & Nat. Res., 117 Nev. 235, 243-44, 20 P.3d 800, 805-06 (2001), but the writ does not serve to curtail the exercise of ministerial power, Gladys Baker Olsen Family Tr. ex rel. Olsen v. Eighth Judicial Dist. Court, 110 Nev. 548, 552, 874 P.2d 778, 781 (1994). After a ballot measure is determined to be procedurally sufficient, the Secretary's duty to place it on the ballot is ministerial. Las Vegas Taxpayer Accountability Comm. v. City Council of Las Vegas , 125 Nev. 165, 172-75, 208 P.3d 429, 434-36 (2009) (requiring that a procedurally proper ballot measure be placed on the ballot and rejecting argument that the duty to do so was not ministerial); see also Caine v. Robbins , 61 Nev. 416, 423, 131 P.2d 516, 519 (1942) (quoting with approval authority describing the Secretary of State's publishing proposed constitutional amendments as "ministerial, involving the exercise of no discretion").

The district court erred in concluding that the Secretary of State was subject to a writ of prohibition in this context.¹ See State ex rel. Marshall v. Down , 58 Nev. 54, 57, 68 P.2d 567, 567 (1937) (concluding that enacting an amendment to a city charter after it had been approved was ministerial and not judicial and thus not subject to prohibition). Accordingly, we reverse the district court order to the extent that it issued a writ of prohibition.

Mandamus relief was warranted to compel the Secretary of State to take no action on the withdrawn initiative petitions

The district court also issued a writ of mandamus that directed the Secretary of State to withdraw the initiative petitions consistent with NRS 295.026 and her duty to take no further action with respect to the withdrawn petitions. The Secretary argues that the Nevada Constitution does not permit withdrawal of an initiative petition after the signatures have been verified and that she was obligated to place the initiative petitions’ questions on the ballot after the Legislature did not act on them. We disagree and affirm the portion of the district court order granting a writ of mandamus.

We review a statute's constitutionality de novo. Nevadans for Nev. v. Beers , 122 Nev. 930, 939, 142 P.3d 339, 345 (2006). The challenger must overcome the presumption that a statute is constitutional with a clear showing of invalidity. Id. If a statute lends itself to both a constitutional and an unconstitutional interpretation, we apply the interpretation that does not violate the constitution. Sheriff v. Wu , 101 Nev. 687, 689-90, 708 P.2d 305, 306 (1985). And in interpreting a constitutional provision, we look to the rules of statutory construction and interpret unambiguous constitutional provisions according to their plain meaning. We the People Nev. ex rel. Angle v. Miller , 124 Nev. 874, 881, 192 P.3d 1166, 1170 (2008). Thus, the state constitution is to be read as a whole, and "the interpretation of a statute or constitutional provision will be harmonized with other statutes or provisions to avoid unreasonable or absurd results." Id. at 881, 192 P.3d at 1171.

Article 19, Section 2 of the Nevada Constitution sets forth the people's power to propose or amend a statute and to propose a constitutional amendment. In...