Herbst Gaming, Inc. v. Sec'Y of State, 47620.
| Decision Date | 08 September 2006 |
| Docket Number | No. 47620.,47620. |
| Parties | HERBST GAMING, INC.; Golden Gaming, Inc., d/b/a Pt's Pub; Nevada Tavern Owners Association; United Coin Machine Company; Nevada Petroleum Marketers & Convenience Store Association; Sean Timothy Higgins; and Peter Krueger, Appellants, v. Dean HELLER, Secretary of State; American Cancer Society; American Heart Association; Nevada Tobacco Prevention Coalition; and American Lung Association, Respondents. |
| Court | Nevada Supreme Court |
Jones Vargas and Kirk B. Lenhard and Ariel E. Stern, Las Vegas, and John P. Desmond, Reno, for Appellants.
George Chanos, Attorney General, and Joshua J. Hicks, Deputy Attorney General, Carson City, for Respondent Dean Heller, Secretary of State.
Keith Loomis, Carson City; Maria Elizabeth Pence, Carson City, for Respondents American Cancer Society, American Heart Association, Nevada Tobacco Prevention Coalition, and American Lung Association.
Schreck Brignone and Todd L. Bice and Lawrence J. Semenza III, Las Vegas, for Amici Curiae Nevada Resort Association, Nevada Hotel & Lodging Association, and Nevada Tourism Alliance.
Before the Court En Banc.
This is an appeal from a district court order declining to remove the Nevada Clean Indoor Air Act initiative (NCIAA) from the November 2006 ballot. We take this opportunity to clarify what types of objections are properly considered in a preelection challenge to an initiative. While challenges based on alleged procedural irregularities and specific constitutional or statutory requirements for initiatives may be considered preelection, those that allege that a measure, if approved, may violate substantive federal or state constitutional provisions are not appropriate for preelection determination. Several of appellants' and amici curiae's arguments are not properly considered at this time because they allege that, if enacted, the NCIAA may violate due process, equal protection, or the right to privacy. Further, the remaining objections do not warrant the initiative's removal from the ballot. Consequently, we affirm the district court's order denying declaratory and injunctive relief. As the district court lacked authority to interpret the proposal to apply to hotel and motel rooms, however, its ruling in this regard is void.
Appellants are business entities, such as bars, taverns, and convenience and grocery stores with gaming areas, where smoking is currently permitted, and their related organizations. If the NCIAA is passed, these entities will be compelled to further restrict smoking and in some instances prohibit it entirely. Amici curiae are associations with memberships of large hotels and casinos, which would also be required to restrict smoking in locations where it is currently permitted. Appellants and amici curiae (collectively "opponents") believe that the proposed smoking restrictions will adversely affect their businesses, and so they oppose the measure. Respondents are the initiative's proponents: the Nevada Tobacco Prevention Coalition and its members, the American Cancer Society, the American Heart Association, and the American Lung Association, all nonprofit entities. Secretary of State Dean Heller is a nominal respondent; he has taken no position on the merits of the appeal.
The NCIAA calls for the enactment of new statutes to be added to NRS Chapter 202, which governs crimes against public health and safety. Its proponents state that for several years, as the health dangers associated with secondhand smoke have become increasingly apparent, they have lobbied the Nevada Legislature for more stringent prohibitions on smoking in public areas. After these efforts met with limited success, the proponents drafted the NCIAA. Its stated purpose is to protect children and families from secondhand smoke in public areas.1
The subject of smoking in public places is now governed by NRS 202.249-202.24925. In particular, NRS 202.2491 lists locations where smoking is and is not permitted, and NRS 202.24915 specifically addresses smoking in gaming areas of grocery and convenience stores. The NCIAA would significantly expand the locations in which smoking is prohibited. And the current sanctions, a civil penalty of $100 and criminal penalties for a misdemeanor, would remain in place.2 Notably, under the NCIAA, smoking would be permitted in casino gaming areas, where no one under 21 is permitted to "loiter,"3 but not in other parts of a casino, where children are permitted. Smoking would also be allowed in "stand-alone" bars (i.e., those that do not serve prepared food, for which they must have a food-preparation license), and in "private residences," a term that is not defined in the measure itself. The NCIAA would prohibit smoking in restaurants and bars with a food-handling license (except for outdoor seating areas), grocery stores, and convenience stores.
Another key change within the NCIAA concerns local regulation: under the present statutory scheme, local governments, except for school districts, may not impose more stringent restrictions on smoking.4 The NCIAA would allow a locality to approve restrictions in addition to those contained in the NCIAA itself. The initiative provides that any law that is inconsistent with the initiative is "null and void." Thus, if approved, the initiative would vacate portions of NRS 202.2491 and NRS 202.24915, the statutes that now prescribe where smoking can and cannot occur, replacing them with the initiative's language.
After filing the NCIAA initiative petition with the Secretary of State, the Nevada Tobacco Prevention Coalition gathered signatures and submitted them to the Secretary for validation. The Secretary determined that sufficient signatures had been gathered, and the initiative was therefore presented to the Legislature in February 2005. That same month, the opponents filed a complaint in district court seeking to require the Secretary to recall the measure from the Legislature and to "take no further action" on the measure.
The Assembly Judiciary Committee considered the instant initiative, as well as a competing measure sponsored by the opponents and other similar entities (bars, convenience stores, casinos) in March 2005. The Committee decided that the competing anti-smoking initiatives should go to the voters, and so it deliberately let the 40-day time period specified in the Nevada Constitution lapse.5 Thus, under the Constitution, the initiative was automatically to be included on the November 2006 ballot.6
The district court did not hold an injunction hearing before the Assembly Judiciary Committee hearing. Briefs were filed by the parties and by amici curiae, and the district court held a hearing in late March 2005. The district court asked appellants if they had any evidence to put on, and they responded in the negative, that they were prepared to submit the matter on oral argument and affidavits in the record. For unknown reasons, the district court did not issue its decision for more than one year, until June 5, 2006. The district court ruled that the initiative should not be removed from the ballot. Additionally, the court's order included a determination that hotel and motel rooms would be included in the smoking prohibition, despite the proponents' position that these rooms were not intended to be included.
This appeal followed.
The opponents raise several arguments in support of their position that the NCIAA should not be placed on the ballot, including a procedural objection that the NCIAA's title and its proponents' statements during signature-gathering concerning whether hotel and motel rooms were included were fatally misleading; contentions that the measure violates the constitutional requirement that any appropriation must include a revenue-raising provision and that it must satisfy the requirements for a referendum; and assertions that, if passed, the NCIAA would violate due process, equal protection, and the right to privacy.
Preelection review
A threshold issue that must be resolved in this appeal is to what extent we may entertain preelection challenges to initiative measures. In considering preelection review of an initiative last year, the Washington Supreme Court, in Coppernoll v. Reed,7 noted that challenges to voter initiatives generally fall within three areas: (1) the procedural requirements for placing a measure on the ballot were not met; (2) the subject matter is not appropriate for direct legislation under constitutional or statutory limits on the initiative power; and (3) the measure, if passed, would violate substantive federal or state constitutional provisions.
Challenges falling within the first category, based on asserted procedural defects, are virtually always ripe for preelection review, since the question to be resolved is whether a proposal has satisfied all constitutional and statutory requirements for placement on the ballot. Courts have routinely addressed the merits of such a dispute at the preelection stage.8
Challenges of the second type, that the subject matter is not proper for direct legislation, are usually considered.9 These challenges frequently arise in city or county initiative measures based on limits imposed on the locality's self-governing power by its establishing charter.10 Another challenge of this type is the charge that a statutory initiative is administrative rather than legislative, since the statutory initiative power is limited to legislative acts.11 Finally, specific restrictions on the initiative power can give rise to objections in this category, such as single-subject restrictions and limitations on whether or when an initiative may include an appropriation.12
Courts generally refuse, at the preelection stage, to consider challenges of the third type: that the measure, if enacted, would violate substantive federal or state constitutional provisions.13
In Coppernoll, the ...
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