Nevadans for Prop. Rights v. Sec'Y of State, 47825.
| Decision Date | 08 September 2006 |
| Docket Number | No. 47825.,47825. |
| Parties | NEVADANS FOR THE PROTECTION OF PROPERTY RIGHTS, INC., a Nevada Corporation; Henderson Chamber of Commerce, a Nevada Non-Profit Corporation; Las Vegas Chamber of Commerce, a Nevada Non-Profit Corporation; Nevada Contractors Association, a Nevada Non-Profit Corporation; Associated General Contractors, a Nevada Non-Profit Corporation; Southern Nevada Homebuilders Association Inc., a Nevada Non-Profit Corporation; Nevadans for Nevada, a Nevada Non-Profit Corporation; Clark County, a Political Subdivision of the State of Nevada; Clark County Regional Flood Control District, a Regional Government Agency; Southern Nevada Water Authority, a Regional Government Agency; Las Vegas Valley Water District, a Regional Government Agency; Regional Transportation Commission of Southern Nevada, a Regional Government Agency; Sue Allen, an Individual; Judith Brailsford, an Individual; Jeff Codega, an Individual; Lisa Mayo Deriso, an Individual; M.J. Harvey, an Individual; John Hiatt, an Individual; Jon Mayer, an Individual; Terry Murphy, an Individual; John Restrepo, an Individual; Bruce L. Woodbury, an Individual; and the City of Boulder City, Appellants, v. Dean HELLER, in His Capacity as Secretary of State; People's Initiative to Stop the Taking of Our Land, an Un-Incorported Organization; Don Chairez, an Individual; Kermitt L. Waters, an Individual; and Autumn Lee Waters, an Individual, Respondents. |
| Court | Nevada Supreme Court |
David R. Olsen, City Attorney, Boulder City, for Appellant City of Boulder City.
David J. Roger, District Attorney, Mary-Anne Miller, and E. Lee Thomson, Deputy District Attorneys, Clark County, for Appellants Clark County and Clark County Regional Flood Control District.
Charles K. Hauser and James L. Taylor, Las Vegas, for Appellants Las Vegas Valley Water Distribution and Southern Nevada Water Authority.
Zev E. Kaplan, Las Vegas, for Appellant Regional Transportation Commission of Southern Nevada.
Kummer Kaempfer Bonner & Renshaw, and Tami D. Cowden, Mark E. Ferrario, and Thomas F. Kummer, Las Vegas, for Appellants Nevadans for the Protection of Property Rights, Henderson Chamber of Commerce, Las Vegas Chamber of Commerce, Nevada Contractors Association, Associated General Contractors, Southern Nevada Homebuilder's Association, Nevadans for Nevada, Allen, Brailsford, Codega, Deriso, Harvey, Hiatt, Mayer, Murphy, Restrepo, Woodbury, and City of Boulder City.
George Chanos, Attorney General, and Joshua J. Hicks, Deputy Attorney General, Carson City, for Respondent Dean Heller, Secretary of State.
Hansen & Hansen, LLC, and Jonathan J. Hansen, Las Vegas, for Respondent People's Initiative To Stop The Taking of Our Land and Chairez.
Law Offices of Kermitt L. Waters and Autumn L. Waters and Kermitt L. Waters, Las Vegas, for Respondents Kermitt and Autumn Waters.
Kolesar & Leatham, Chtd., and Nile Leatham and James B. MacRobbie, Las Vegas, for Amicus Curiae Institute for Justice.
Before the Court En Banc.1
In this opinion, we consider the constitutionality of NRS 295.009, which places a single-subject requirement on initiative petitions, and whether the initiative petition at issue in this appeal, the Nevada Property Owners' Bill of Rights, violates that requirement. We conclude that NRS 295.009 is constitutional and that because the Nevada Property Owners' Bill of Rights embraces more than one subject, the initiative violates this statute. Even so, strong public policy favors upholding the initiative power whenever possible, and NRS 295.009 does not prescribe a remedy for single-subject requirement violations. As the initiative includes a severability clause and facially and unequivocally pertains to a primary subject — eminent domain — we are compelled to sever sections 1 and 8, which do not pertain to eminent domain, in lieu of removing the entire initiative from the ballot.
Further, we confirm that initiatives proposing constitutional amendments must propose policy and not direct administrative details. Sections 3, 9, and 10 of the initiative violate this threshold requirement and therefore must be stricken. The rest of the initiative, consisting of sections 2, 4, 5, 6, 7, 11, 12, 13 and 14 shall proceed to the ballot.
In September 2005, respondents People's Initiative to Stop the Taking of Our Land (PISTOL), Don Chairez, Kermitt Waters, and Autumn Waters (collectively "the proponents") filed an initiative petition entitled "Nevada Property Owners' Bill of Rights" with the Secretary of State for placement on the November 7, 2006 ballot. The initiative seeks to amend Article 1 of the Nevada Constitution by adding a new section, section 22, consisting of 14 separate provisions. The initiative's provisions are as follows:
1. All property rights are hereby declared to be fundamental constitutional rights and each and every right provided herein shall be self-executing.
2. Public use shall not include the direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another private party. In all eminent domain actions the government shall have the burden to prove public use.
3. Unpublished eminent domain judicial opinions or orders shall be null and void.
4. In all eminent domain actions, prior to the government's occupancy, a property owner shall be given copies of all appraisals by the government and shall be entitled, at the property owner's election, to a separate and distinct determination by a district court jury, as to whether the taking is actually for a public use.
5. If a public use is determined, the taken or damaged property shall be valued at its highest and best use without considering any future dedication requirements imposed by the government. If private property is taken for any proprietary governmental purpose, the property shall be valued at the use to which the government intends to put the property, if such use results in a higher value for the land taken.
6. In all eminent domain actions, just compensation shall be defined as that sum of money, necessary to place the property owner back in the same position, monetarily, without any governmental offsets, as if the property had never been taken. Just compensation shall include, but is not limited to, compounded interest and all reasonable costs and expenses actually incurred.
7. In all eminent domain actions where fair market value is applied, it shall be defined as the highest price the property would bring on the open market.
8. Government actions which result in substantial economic loss to private property shall require the payment of just compensation. Examples of such substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of any access to private property, and limiting the use of private air space.
9. No Nevada state court judge or justice who has not been elected to a current term of office shall have the authority to issue any ruling in an eminent domain proceeding.
10. In all eminent domain actions, a property owner shall have the right to preempt [sic] one judge at the district court level and one justice at each appellate court level. Upon prior notice to all parties, the clerk of that court shall randomly select a currently elected district court judge to replace the judge or justice who was removed by preemption [sic].
11. Property taken in eminent domain shall automatically revert back to the original property owner upon repayment of the original purchase price, if the property is not used within five years for the original purpose stated by the government. The five years shall begin running from the date of the entry of the final order of condemnation.
12. A property owner shall not be liable to the government for attorney fees or costs in any eminent domain action.
13. For all provisions contained in this section, government shall be defined as the State of Nevada, it political subdivisions, agencies, any public or private agent acting on their behalf, and any public or private entity that has the power of eminent domain.
14. Any provision contained in this section shall be deemed a separate and freestanding right and shall remain in full force and effect should any other provision contained in this section be stricken for any reason.
After the necessary signatures were gathered and verified, the Secretary of State determined that the initiative had qualified for placement on the November 2006 ballot. In reviewing the initiative, the Secretary was required to determine whether it complied with Nevada's single-subject requirement, NRS 295.009.2 The Secretary conducted a "broad" review and concluded, apparently without any analysis, that the initiative "arguably complied with the single subject rule." Appellants, a collection of individuals and government entities opposed to the initiative, then filed a complaint in district court seeking declaratory and extraordinary relief to prevent the initiative from being placed on the ballot. The district court denied all requested relief, ruling that the initiative encompasses only a single subject and is therefore not disqualified from appearing on the ballot. This appeal followed.
NRS 295.009, Nevada's recently enacted single-subject requirement for initiatives, is the focal point in this appeal. As the statute's constitutionality has been called into question, we first address this threshold issue. We then discuss the statute's application to the initiative at hand and the remedy, in this case, for a statutory violation. Finally, we analyze the initiative under the threshold requirement that it propose policy.
This court reviews a district court's decision denying declaratory relief made in the absence of any factual dispute de novo.3 And although this court...
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