University Sys. v. Nevadans for Sound Gov't

• Decision Date: 10 November 2004
• Docket Number: No. 43652.,43652.
• Citation: 120 Nev. 712,100 P.3d 179
• Parties: UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA; and Regional Transportation Commission of Washoe County, Appellants, v. NEVADANS FOR SOUND GOVERNMENT, Respondent.
• Court: Nevada Supreme Court

100 P.3d 179

120 Nev. 712

UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA; and Regional Transportation Commission of Washoe County, Appellants, v. NEVADANS FOR SOUND GOVERNMENT, Respondent.

No. 43652.

Supreme Court of Nevada.

November 10, 2004.

Bart J. Patterson, Associate General Counsel, Las Vegas, for Appellant University and Community College System of Nevada.

Erickson Thorpe & Swainston, Ltd., and Thomas P. Beko and Rebecca Bruch, Reno, for Appellant Regional Transportation Commission of Washoe County.

Hansen & Hansen, LLC, and Joel F. Hansen, Las Vegas, for Respondent.

Before the Court En Banc.¹

OPINION

PER CURIAM.

In this appeal, we examine the constitutional and statutory boundaries of the government's right to impose "time, place, and manner" restrictions on the use of its property for petition-circulating activities. The First Amendment to the United States Constitution and Article 1, Section 9 of the Nevada Constitution protect the rights of persons to engage in expressive speech activity. Similarly, Article 19 of the Nevada Constitution expresses the popular right to circulate referendum and initiative petitions in Nevada. Finally, NRS 293.127565 governs the right to use public buildings to collect petition signatures.

The district court determined that actions taken by certain governmental actors, including appellants, to restrict respondent's petition-circulating activities on their respective properties unlawfully violated respondent's constitutional and statutory rights. Further, it determined that if appellants' actions were allowed to continue, respondent's signature-gathering abilities would be irreparably harmed. Accordingly, the district court issued a preliminary injunction, enjoining appellants from further interfering with respondent's exercise of its rights. This appeal followed.

We conclude that the district court erred in determining that appellants' time, place, and manner restrictions unconstitutionally violated respondent's right to gather signatures. Further, we conclude that the district court erred, with respect to appellant University and Community College System of Nevada, in determining that NRS 293.127565 applied to prohibit enforcement of the University of Nevada, Las Vegas expressive-activities policy. Finally, we agree with the district court's conclusion that some provisions within appellant Regional Transportation Commission's guidelines constitute impermissible restrictions under NRS 293.127565.

FACTS

In Nevada, petition circulators have a limited amount of time within which to collect signatures on proposed ballot measures and to transmit their signed petition documents to the county clerks for signature verification, who must then submit verified petitions to the Secretary of State for ballot placement within constitutional time frames.² From late-2003 to mid-2004, respondent Nevadans for Sound Government's (NSG) petition circulators gathered signatures on two petitions containing measures to be placed on the November 2004 ballot: a referendum petition, with an initial submission deadline of May 18, 2004, and an initiative petition, with an initial submission deadline of June 15, 2004. On May 28, 2004, NSG filed an amended complaint in the district court, alleging that various actions taken during the previous months by Nevada's Department of Motor Vehicles (DMV), and appellants Regional Transportation Commission of Washoe County (RTC) and University and Community College System of Nevada (UCCSN), had unlawfully restricted its access to DMV, RTC, and UCCSN properties for signature collecting purposes. As the DMV has not appealed, only the RTC and UCCSN actions are at issue.

RTC property

RTC guidelines essentially restrict the use of designated areas to persons who are gathering signatures for petitions governed by NRS Chapter 293, including initiative, referendum, and recall of public officer petitions. The guidelines establish that, when possible, the designated area will "be such that ... [patrons] may use another path that does not go by signature gatherers or may pass them at a reasonable distance." However, the precise locations of the designated areas are not indicated in the guidelines. The guidelines further provide that an RTC request form must be submitted three business days before the date of the intended activity. The request form asks for the name, telephone number, and organization of the requestor. It also asks for the subject of the petition, and whether it is for city, county, or state elections. Finally, it asks the requestor for the dates on which the activity is to occur. There is a space for the requestor to sign the form, thereby agreeing to comply with RTC guidelines.

Under the guidelines, only petition circulators gathering signatures on petitions for city, county, or state-wide elections who have given "adequate notice in accordance with [RTC] guidelines shall be permitted to conduct the signature gathering activity." The guidelines state that the "RTC will contact [the requestor] no later than two business days after receiving [the] request to confirm that [the requested] activity qualifies under the provisions of NRS 293.127565."³ Additionally, the guidelines provide that failure to comply with their restrictions will result in the immediate revocation of any permission to use RTC facilities for signature gathering.

On May 6, 2004, one of NSG's directors called the RTC to discuss alleged problems that NSG members had encountered when they attempted to access RTC's CitiCenter hub in Reno to gather signatures. She was directed to RTC chief legal counsel Stan Peck, on whose voicemail she left a message. When Peck returned her call, she asserted that she was thereby notifying him of NSG's intent to petition on RTC premises anytime between then and June 15. Although the NSG director noted her disagreement with Peck's response that she would first have to fill out some paperwork, Peck nevertheless faxed her copies of the RTC guidelines and request form.

According to the NSG director, she and her companions arrived that same day (May 6), began to gather signatures, and were told by RTC employees that they had to sign the request form or cease gathering signatures. They refused to sign or leave, and were eventually arrested by Reno police officers. The director testified that, on May 6, no one ever told her where RTC's designated signature-gathering area was located.

UCCSN property

The University of Nevada, Las Vegas (UNLV) deems its campus and facilities a "non-public forum," except for certain areas expressly listed, which are open to the public for First Amendment activities. The designated areas include the academic malls and alumni walk, and are designed to reach approximately seventy-five percent of the students, faculty, and staff on campus on any given day. The policy requires "notification to the University Public Affairs Office" by anyone intending to use the premises for expressive activities.

UNLV also has a form seeking the requestor's name and contact information, which the requestor must sign. UNLV does not have a set policy regarding how much advance notice must be given and does not attempt to verify the type of petition being circulated. Further, although UNLV does not require written acceptance of its guidelines, it expects visitors to follow those guidelines.

The evidence presented to the district court concerning UCCSN revolved primarily around an incident outside of UNLV's Artemis W. Ham Concert Hall (Ham Hall) on May 18, 2004. That night, the Bush Campaign held what UCCSN asserts was a private, ticketed, invited-guests-only political rally at the hall. The campaign arranged and paid for additional security directly with the UNLV police department.

An NSG petition circulator testified that he arrived without prior notice on the UNLV campus around 3:30 or 4:00 p.m. to collect signatures outside Ham Hall. He stated that he approached the "most authoritative" person he saw, a UNLV police officer, who directed him to the other (north) side of the building. The petition circulator testified that he was standing at the bottom of the northern stairwell, soliciting signatures, when another UNLV police officer told him that he had to leave because petitioning is not allowed on UNLV property. According to the circulator, he and the officer had further discourse regarding his signature-gathering activities, during which the officer blocked his access to exiting persons and insisted that he move to the side, away from the stairwell. The officer, according to the circulator, then handcuffed him and led him away from the exit path. The circulator refused to leave the area and was consequently arrested. He testified that the only other signature-gathering location offered to him was away from the exits, off UNLV property.

Following the June hearing, the district court determined that NSG's signature-gathering efforts had been hindered in violation of constitutional and statutory rights and, accordingly, issued an order granting a preliminary injunction. Specifically, the district court noted the above incidents, made findings as to similar events at DMV locations, and stated that "[t]he record is replete with testimony of instances where the [government actors] forced [NSG] group members and agents to leave state public buildings for lack of official authorization to be circulating petitions on the premises, and instances of denial of [NSG's] asserted right to use the building[s]." The court rejected appellants' arguments that their actions were taken pursuant to permissible time, place, and manner restrictions, and enjoined them from further acting to prevent NSG from the full enjoyment of its rights. In addition, the district court's order directed the county clerks to accept the two petitions for filing through the "close of business July 20, 2004," and the Secretary of State to expedite his respective...