Glover v. Concerned Citizens for Fuji Park
| Decision Date | 25 July 2002 |
| Docket Number | No. 39601.,39601. |
| Citation | 118 Nev. 488,50 P.3d 546 |
| Parties | Alan GLOVER, Carson City Clerk, and the Carson City Board of Supervisors, Appellants, v. CONCERNED CITIZENS for FUJI PARK and Fairgrounds, a Nevada Corporation, Respondent. |
| Court | Nevada Supreme Court |
Noel S. Waters, District Attorney, Mark R. Forsberg, Chief Deputy District Attorney, and Melanie L.F. Bruketta, Deputy District Attorney, Carson City, for Appellants.
Smith & Harmer, Carson City, for Respondent.
BEFORE THE COURT EN BANC.
Concerned Citizens for Fuji Park and Fairgrounds submitted an initiative petition to the Carson City Clerk/Recorder, which proposed that an ordinance be enacted to preserve Fuji Park and Carson City Fairgrounds in perpetuity. Because the Carson City Board of Supervisors took no action on the initiative petition, Concerned Citizens filed the underlying petition for a writ of mandamus in the district court to compel the Clerk to place the initiative on the ballot. The district court granted the writ of mandamus and directed the Clerk and Board to place the initiative on the ballot.
The Clerk and Board filed the instant appeal challenging the district court's order and seeking to prevent the initiative from being placed on the ballot. We conclude that the initiative concerns an administrative matter and exceeds the electorate's initiative power, and that the proposed ordinance improperly restricts the Board's authority under the Carson City Charter to sell real property. We further conclude that pre-election court intervention is warranted to preclude the initiative's inclusion on the ballot. Consequently, we reverse the district court's order.
Concerned Citizens for Fuji Park and Fairgrounds, respondents, submitted an initiative petition to the Carson City Clerk/Recorder that proposed enactment of the following ordinance:
Concerned Citizens then filed the underlying petition for a writ of mandamus in the district court against the Clerk and Board, seeking to compel the Clerk to place the initiative on the September 3, 2002 primary election ballot. Concerned Citizens cited NRS 295.115, which provides that if the Board fails to adopt a certified initiative petition, the petition shall be placed on the next primary or general election ballot.
The district court issued a writ of mandamus, directing the Clerk and the Board (collectively Carson City) to place the proposed ordinance on the September 3, 2002 ballot, or show cause why they refused to do so. Carson City moved to quash the writ and dismiss the petition on the basis that the initiative process may not be used to control the sale or use of Fuji Park or the Fairgrounds because it concerned an administrative rather than a legislative matter.
After conducting a hearing, the district court entered a written order granting the writ of mandamus and directing Carson City, under NRS 295.115, to place the initiative petition on the election ballot. Carson City filed the instant appeal challenging the district court's order, and seeking to prevent the initiative's placement on the ballot.
As a preliminary matter, Concerned Citizens argue that NRS 293.725 precludes Carson City from spending money to oppose this initiative petition. That statute provides, In response, Carson City asserts that it should be allowed to defend the action brought against it. Carson City further argues that this case does not involve Carson City's support or opposition to a ballot question, but involves issues concerning the initiative's constitutionality.
NRS 293.725 is a new statute, enacted in 2001.1 It is well established that when the language of a statute is unambiguous, a court should give that language its ordinary meaning.2 If the statutory language is susceptible to more than one reasonable interpretation, however, it is ambiguous, and we must construe it in accordance with what reason and public policy indicate the legislature intended.3 Further, the statute's language should not be read to produce absurd or unreasonable results.4
Here, we conclude that the language prohibiting the government from incurring an expense "to support or oppose" a ballot question is ambiguous. It could, read narrowly, refer only to the government's expenditure to politically support or oppose a ballot question already placed on a ballot and set for an election. Construed broadly, the language could refer to any government expenditure relating to a ballot question, including expense incurred in challenging a ballot question's validity in a legal action prior to the question's inclusion on the ballot.
Since the language of NRS 293.725 is ambiguous, we look to the legislature's intent, which supports a narrow construction of the statutory language to prevent the government from incurring expense to support or oppose, for political reasons, a ballot question already placed on a ballot. The legislative history reveals that the statute was intended to prevent the government from spending money on campaigning, directly or indirectly, for or against a ballot question or candidate. There is some indication that the bill was introduced in response to past elections in which a city sponsored and paid for televised events that featured incumbent candidates in a positive light with one-sided election discussions, and circulated a city employee newsletter just two weeks before the election with only the incumbents featured.5 Thus, the legislature did not intend to prevent the government from incurring expense in challenging the validity of a ballot question in court. A broader reading of the statute could lead to an absurd result, as it would prevent the government from ever challenging an initiative's validity before placement on the ballot. Thus, NRS 293.725 does not bar Carson City's court opposition to the initiative petition in this case.
Legislative versus administrative acts
We next address Carson City's argument that the initiative petition is not within the scope of the initiative power because it concerns an administrative rather than a legislative act. Initiative is the power of the people to propose and enact new laws.6 The power is contained within Article 19, Section 2(1) of the Nevada Constitution: "[T]he people reserve to themselves the power to propose, by initiative petition, statutes and amendments to statutes and amendments to this constitution, and to enact or reject them at the polls." The initiative powers provided in Article 19 "are further reserved to the registered voters of each county and each municipality as to all local, special and municipal legislation of every kind in or for such county or municipality."7
Carson City is considered a "county" under the Nevada Revised Statutes.8 The procedures for county initiatives are found in NRS 295.075 to NRS 295.125. Generally, NRS 295.085(1) allows county registered voters to propose ordinances to the board of county commissioners and, if the board fails to adopt the proposed ordinance without change in substance, the voters may adopt or reject the proposed ordinance at the next primary or general election. In particular, if an initiative petition is procedurally sufficient, the board shall promptly consider it.9 But if the board fails to adopt the proposed initiative ordinance without any change in substance within thirty days, "the board shall submit the proposed ... ordinance to the registered voters of the county."10 The county-wide vote on the proposed ordinance "must be held at the next primary or general election."11
This statutory authority requires the Board to place a procedurally sufficient initiative petition on the ballot. Here, the parties stipulated to the initiative petition's procedural sufficiency. Carson City argues, however, that it should not be compelled to place the initiative on the ballot because it concerns an administrative rather than a legislative act, and is thus not within the scope of the initiative power.
The Nevada Constitution expressly reserves to county and municipality voters the power to enact "all local, special and municipal legislation of every kind."12 We held in Forman v. Eagle Thrifty Drugs & Markets13 that this initiative power applies only to legislation; administrative acts are excepted from the initiative process.14Forman involved an initiative that amended certain Reno zoning laws to prohibit commercial or industrial use of property within 300 feet of elementary or junior high schools.15 The citizens sought to prevent construction of a supermarket near a school. To determine whether a municipal ordinance is legislative or administrative, we set forth the following test:
"An ordinance originating or enacting a permanent law or laying down a rule of conduct or course of policy for the guidance of the citizens or their officers and agents is purely legislative in character and referable, but an ordinance which simply puts into execution previously-declared policies, or previously-enacted laws, is administrative or executive in character, and not referable."16
We concluded that the initiative process does not apply to matters legislatively delegated to...
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