Lvcva v. Secretary of State

Decision Date04 September 2008
Docket NumberNo. 52045.,No. 51639.,No. 51509.,No. 51564.,51509.,51564.,51639.,52045.
Citation191 P.3d 1138
PartiesLAS VEGAS CONVENTION AND VISITORS AUTHORITY, a Nevada Local Government Entity, Appellant/Cross-Respondent, v. Ross MILLER, in his Capacity as Secretary of the State of Nevada, Respondent, and School Funding Solutions Ballot Advocacy Group, a Nevada Unincorporated Association; School, Road and Safety Funding Solutions Ballot Advocacy Group, a Nevada Unincorporated Association; and Robert Seale, an Individual, Respondents/Cross-Appellants. County of Clark; City of Boulder City, Nevada; City of Henderson, Nevada; City of Mesquite, Nevada; City of Las Vegas, and City of North Las Vegas, Nevada, Municipal Corporations and Political Subdivisions of the State of Nevada, Appellants/Cross-Respondents, v. School Funding Solutions Ballot Advocacy Group, a Nevada Unincorporated Association; School, Road and Safety Funding Solutions Ballot Advocacy Group, a Nevada Unincorporated Association; Robert Seale, an Individual; and Ross Miller, in his Capacity as Secretary of the State of Nevada, Respondents/Cross-Appellants, Nevadans for Nevada, a Nevada Nonprofit Corporation; and Nevada State Education Association, a Nevada Nonprofit Corporation, Appellants, v. Steven E. Martin; Nevadans for Fair Taxes; and Ross Miller, in his Capacity as Secretary of State of the State of Nevada, Respondents. Nevadans for Fair Taxes, a Nevada Unincorporated Association; School Funding Solutions Ballot Advocacy Group, a Nevada Unincorporated Association; and School, Road and Safety Funding Solutions Ballot Advocacy Group, A Nevada Unincorporated Association, Appellants, v. Ross Miller, in his Capacity as Secretary of the State of Nevada; Nevada State Education Association, a Nevada Nonprofit Corporation; Las Vegas Convention and Visitors Authority, a Nevada Local Government Entity; and Nevadans for Nevada, a Nevada Nonprofit Corporation, Respondents.
CourtNevada Supreme Court

Carie A. Torrence, City Attorney, North Las Vegas, for City of North Las Vegas.

McCracken, Stemerman & Holsberry and Paul L. More, Richard G. McCracken, and Andrew J. Kahn, Las Vegas, for Nevadans for Nevada.

Dyer, Lawrence, Penrose, Flaherty & Donaldson and Michael Dyer, James W. Penrose, and Jessica C. Prunty, Carson City, for Nevada State Education Association.

Allen Lichtenstein, Las Vegas; Lee B. Rowland, Reno, for Amicus Curiae American Civil Liberties Union.

Before the Court En Banc.1

OPINION

PER CURIAM.

These are consolidated appeals and cross-appeals concerning three initiative petitions.

These appeals present a fundamental procedural question—whether the initiatives' circulators' failure to include statutorily mandated language in their affidavits verifying the signature-gathering process voids the signatures collected. Under this court's precedent, the initiative circulators' affidavits must substantially comply with certain statutory requirements. Here, the circulators' affidavits completely failed to include two statements mandated by NRS 295.0575: first, they do not state the number of signatures on the document, and second, they do not state that each signer had an opportunity to read the full text of the initiative before signing. We conclude that the affidavits do not substantially comply with the statutory requirements. Moreover, the proponents' efforts in the district court to cure the affidavits' defects were insufficient because the proponents failed to make a valid offer of proof necessary to show whether the circulators nevertheless complied with the statute's purposes.

In addressing these issues, we reject the proponents' First Amendment challenge to enforcement of NRS 295.0575's affidavit requirements, as the United States Supreme Court has implicitly approved of requirements similar to those at issue here. We also reject the proponents' argument that enforcement of the statute is barred by substantive due process concerns or estoppel. We therefore affirm the district court's judgment approving the decision of the Secretary of State to strike the signatures.

FACTS

The initiatives

The Las Vegas Convention and Visitors Authority (LVCVA) is a statutorily created body that markets Las Vegas as a worldwide tourist and convention destination. It has described its mission as "attracting an ever-increasing number of visitors to Southern Nevada." It also operates the Las Vegas Convention Center and the Cashman Center. It is defined in NRS 354.474 as a local government entity because it was created pursuant to NRS Chapter 244A, governing county park and recreation commissions.

The LVCVA is funded primarily by room taxes imposed by the local governments in Clark County, including the County itself and its incorporated cities. Additional funding is obtained from gaming license fees imposed by most of these local governments.2 Two of the initiatives, the Education Enhancement Act and the Funding Nevada's Priorities Act, seek to divert a portion of the LVCVA's funding to other purposes.3 The Education Enhancement Act would devote the LVCVA's room tax and gaming license revenue over its 2006-07 level (adjusted for inflation) to the State Distributive School Account, which funds K-12 education throughout the state. The Funding Nevada's Priorities Act would divide this excess income into three equal parts, with one-third going to the State Distributive School Account; one-third to the State Highway Fund; and one-third to the Public Safety Fund, which is a fund created by the initiative to fund services such as police, fire, homeland security, and corrections.

The Nevada Taxpayers Protection Act initiative petition seeks to amend the Nevada Constitution to require that at least two-thirds of the voters approve any ballot initiative proposing a statutory or constitutional law that would "create, generate, or increase" public revenue in any manner, before that initiative could become law. In addition, to correct a perceived loophole allowing the Legislature to enact revenue-generating initiative statutes by simple majority vote, even though it must normally enact revenue-generating statutes proposed in a bill or by joint resolution by a two-thirds vote,4 the Taxpayers Protection initiative also states that any such initiative submitted to the Legislature would be subject to the constitutional provision requiring approval by two-thirds of the Legislature. The initiative's opponents dispute that any such loophole exists, arguing that any revenue-generating law enacted by the Legislature in whatever form, is subject to the preexisting two-thirds vote requirement.

Procedural history of the initiatives' challenges

The LVCVA filed in the district court a declaratory relief action challenging the Education Enhancement Act and the Funding Nevada's Priorities Act. Clark County and the cities of Las Vegas, North Las Vegas, Mesquite, Henderson, and Boulder City ("the local governments") filed a separate declaratory relief action challenging the two initiatives. The two actions were consolidated. Following briefing and oral argument, the district court ruled in favor of the proponents, refusing to invalidate the initiatives. The district court also concluded that, while the local governments could not campaign for or against the initiatives, they could maintain the declaratory relief actions.

The LVCVA appealed, and its appeal was docketed as No. 51509. The local governments also appealed; their appeal was docketed as No. 51564. The proponents cross-appealed in both cases, challenging the portion of the district court's ruling that permitted the local governments to maintain the actions.

Similarly, opponents of the Nevada Taxpayers Protection Act, the nonprofit organizations Nevadans for Nevada and Nevada State Education Association, challenged that initiative's description of effect in the district court. The district court declared that the initiative petition's description of effect was valid and denied the initiative's opponents relief. The initiative's opponents then appealed; their appeal was docketed as No. 51639.

While the appeals were in briefing, the Secretary of State determined that the circulators' affidavits for all three initiatives were defective. In particular, none of the affidavits set forth the number of signatures on the document or a statement that each signer had an opportunity to read the full text of the initiative before signing, as required under NRS 295.0575. The Secretary of State found that the affidavits were defective and that no signatures collected by circulators with defective affidavits could be counted. Since all of the affidavits shared the same defects, the county clerks all returned verification results showing that no valid signatures for any of the initiatives had been collected. The proponents "appealed" the county clerks'...

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