CEGAVSKE v. HOLLOWOOD (BALLOT ISSUE) ( 2022 )

- 138 Nev., Advance Opinion U (9
IN THE SUPREME COURT OF THE STATE OF NEVADA
BARBARA K. CEGAVSKE, IN HER No. 84420
OFFICIAL CAPACITY AS NEVADA
SECRETARY OF STATE,
Appellant,
vs.
ROBERT HOLLOWOOD, AN FILED
INDIVIDUAL; KENNETH BELKNAP,
AN INDIVIDUAL; NEVADANS FOR
FAIR GAMING TAXES PAC, A
NEVADA COMMITTEE FOR
POLITICAL ACTION; FUND OUR
SCHOOLS PAC, A NEVADA
COMMITTEE FOR POLITICAL
ACTION; NEVADA RESORT
ASSOCIATION, A NEVADA
NONPROFIT CORPORATION;
GREATER LAS VEGAS CHAMBER OF
COMMERCE, D/B/A VEGAS
CHAMBER, A NEVADA NONPROFIT
CORPORATION,
Respondents.
Appeal from a district court order granting writs of mandamus
and prohibition barring the Secretary of State from placing initiative
petition questions on the ballot. First Judicial District Court, Carson City;
James E. Wilson, Judge.
Affirmed in part and reversed in part.
Great Basin Law and Wayne O. Klomp, Reno,
for Appellant.
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Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Bradley S. Schrager,
Daniel Bravo, and Eric Levinrad, Las Vegas; McLetchie Law and Margaret
A. McLetchie, Las Vegas,
for Respondents Robert Hollowood, Kenneth Belknap, Nevadans for Fair
Gaming Taxes PAC, and Fund Our Schools PAC.
Lewis Roca Rothgerber Christie LLP and Joel D. Henriod, Daniel F.
Polsenberg, Abraham G. Smith, and Kory J. Koerperich, Las Vegas,
for Respondents Nevada Resort Association and Greater Las Vegas
Chamber of Commerce.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, STIGLICH, J.:
This appeal involves two verified initiative petitions to place
questions on the ballot for the Nevada 2022 general election and the
sponsors’ withdrawal of the initiative petitions. Although Nevada law
provides a procedure to withdraw an initiative petition and directs that “no
further action may be taken on [a withdrawn] petition,” NRS 295.026(2),
Secretary of State Barbara Cegavske refused to honor the withdrawals of
the two petitions at issue here. The sponsors then sought and obtained
writs of mandamus and prohibition from the district court to compel her to
recognize the withdrawals and thereby prevent the questions from
appearing on the 2022 ballot. The Secretary of State appeals, arguing that
the statute setting forth the withdrawal procedure, NRS 295.026, is
unconstitutional. We conclude that NRS 295.026 is a permissible exercise
of the Legislature’s power to enact statutes to facilitate the people’s
initiative power and is thus not unconstitutional. Because the statute
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compels the Secretary of State not to act on the withdrawn initiative
petitions, the district court properly issued a writ of mandamus compelling
the Secretary not to act. But because the act of placing matters on a ballot
is ministerial, it is not the sort of action that is subject to prohibition, and
therefore the district court abused its discretion in issuing a writ of
prohibition. We thus affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
Respondents Robert Hollowood, Kenneth Belknap, Nevadans
for Fair Gaming Taxes PAC, and Fund Our Schools PAC sponsored two
initiative petitions for the purposes of funding education via an increase in
Nevada sales tax and a tax on gaming. The initiative petitions listed
Hollowood and Belknap as among the three individuals permitted to
withdraw or amend each initiative petition. The sponsors obtained the
required signatures and submitted them to the Secretary of State, who
verified them and submitted the initiative petitions to the Legislature for
consideration. The Legislature did not act on the initiative petitions but did
reach an agreement to otherwise increase taxes to fund education.
Thereafter, Hollowood and Belknap each filed a petition withdrawal form
with the Secretary of State’s office.
On request from the Governor’s office, the Attorney General
issued an opinion as to whether the Nevada Constitution prevents initiative
petition sponsors from withdrawing a petition. The Attorney General
opined that it did not. 2021-04 Op. Att’y Gen. The opinion (1) framed the
Secretary of State’s role as ministerial, (2) found no constitutional
provisions limiting withdrawal of an initiative petition such that there was
no direct conflict between the constitution and the statute, (3) interpreted
NRS 295.026 as imposing a procedural right permitting sponsors to
withdraw a petition, and (4) concluded that the Secretary’s duty to place a
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matter on the ballot was owed to the sponsors and would be waived by the
sponsors’ withdrawal of the petition. Jd.
The Secretary disagreed with the Attorney General opinion,
concluded that she had a constitutional duty to place verified initiative
petitions on the ballot, and thus refused to recognize the sponsors’
withdrawal. The sponscrs petitioned the district court for writs of
mandamus and prohibition. Respondents Nevada Resort Association and
Greater Las Vegas Chamber of Commerce successfully moved to intervene
and joined in the petition. The district court concluded that NRS 295.026
permissibly expands initiative sponsors’ rights by providing a clear
procedure and deadlines to withdraw a petition. The court further held that
the Secretary’s duty to place a matter on the ballot presupposed a valid
petition and that a withdrawal consistent with NRS 295.026 makes the
petition void and thus no longer valid, such that there was no further action
for the Secretary to take. The district court therefore issued writs of
mandamus and prohibition. The Secretary of State appeals.
DISCUSSION
A writ of mandamus may be sought to compel the performance
of an act that the law requires as a duty resulting from an office, trust, or
station or to control an arbitrary or capricious exercise of discretion. NRS
| 34.160; State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931,
267 P.3d 777, 779 (2011). A writ of prohibition may issue if an individual
exercising judicial functions or a tribunal acts in excess of its jurisdiction.
NRS 34.320; Goicoechea v. Fourth Judicial Dist. Court, 96 Nev. 287, 289-
90, 607 P.2d 1140, 1141 (1980). While this court reviews a district court
decision to grant or deny a writ petition for an abuse of discretion, DR
Partners v. Bd. of Cty. Comm’rs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000),
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questions of statutory or constitutional interpretation are reviewed de novo,
Lawrence v, Clark County, 127 Nev. 390, 393, 254 P.3d 606, 608 (2011).
A writ of prohibition is not appropriate to bar the Secretary of State’s
ministerial action
We first resolve the Secretary’s challenge to the writ of
prohibition. The district court issued a writ of prohibition ordering the
Secretary not to place the initiative petitions on the general election ballot.
The Secretary argues that the order fails to identify any judicial or quasi-
judicial functions being carried out and is therefore deficient. We agree and
reverse the portion of the order granting a writ of prohibition.
In addition to barring the extrajurisdictional exercise of judicial
power, a writ of prohibition may be issued to curtail the inappropriate
exercise of quasi-judicial power, Mineral County v. State, Dep't of
Conservation & Nat. Res., 117 Nev. 235, 243-44, 20 P.3d 800, 805-06 (2001),
but the writ does not serve to curtail the exercise of ministerial power,
| Gladys Baker Olsen Family Tr. ex rel. Olsen v. Eighth Judicial Dist. Court,
110 Nev. 548, 552, 874 P.2d 778, 781 (1994). After a ballot measure is
| determined to be procedurally sufficient, the Secretary’s duty to place it on
the ballot is ministerial. Las Vegas Taxpayer Accountability Comm. v. City
Council of Las Vegas, 125 Nev. 165, 172-75, 208 P.3d 429, 434-36 (2009)
(requiring that a procedurally proper ballot measure be placed on the ballot
and rejecting argument that the duty to do so was not ministerial); see also
Caine v. Robbins, 61 Nev. 416, 423, 131 P.2d 516, 519 (1942) (quoting with
} approval authority describing the Secretary of State's publishing proposed
constitutional amendments ag “ministerial, involving the exercise of no
discretion”).
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The district court erred in concluding that the Secretary of
State was subject to a writ of prohibition in this context.! See State ex rel.
Marshall v. Down, 58 Nev. 54, 57, 68 P.2d 567, 567 (1937) (concluding that
enacting an amendment to a city charter after it had been approved was
ministerial and not judicia! and thus not subject to prohibition).
Accordingly, we reverse the district court order to the extent that it issued
a writ of prohibition.
Mandamus relief was warranted to compel the Secretary of State to take no
action on the withdrawn initiative petitions
The district court also issued a writ of mandamus that directed
the Secretary of State to withdraw the initiative petitions consistent with
NRS 295.026 and her duty to take no further action with respect to the
withdrawn petitions. The Secretary argues that the Nevada Constitution
does not permit withdrawal of an initiative petition after the signatures
have been verified and that she was obligated to place the initiative
‘Decisions of other state courts support this conclusion,
distinguishing the quasi-judicial act of determining whether a measure or
candidate is eligible for placement on the ballot from the ministerial act of
placing that entry on the ballot. For instance, the Ohio Supreme Court has
recognized that prohibition was appropriate when an elections board
exercised a quasi-judicial power in barring a referendum from the ballot
after reviewing the measure in a hearing, State ex rel. McCann v. Delaware
Cty. Bd. of Elections, 118 N.E.3d 224, 228 (Ohio 2018), whereas merely
placing a measure already determined to be sufficient on the ballot is
ministerial and thus not subject to the writ of prohibition, State ex rel, Glass
v. Brown, 368 N.E.2d 837, 837-38 (Ohio 1977). The South Dakota Supreme
Court concluded that prohibition would be suitable where the Secretary of
State had to determine eligibility for office in deciding whether to certify a
candidate. State ex rel. Grigsby v. Ostroot, 64 N.W.2d 62, 65 (S.D. 1954),
The Oklahoma Supreme Court is in accord, distinguishing such a
determination from a ministerial act not subject to the writ. State ex rel.
Heartsill v. Cty. Election Bd. of Carter Cty., 326 P.2d 782, 786 (Okla. 1958).
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petitions’ questions on the ballot after the Legislature did not act on them.
We disagree and affirm the portion of the district court order granting a
writ of mandamus.
We review a statute’s constitutionality de novo. Nevadans jor
Nev. v. Beers, 122 Nev. 930, 939, 142 P.3d 339, 345 (2006). The challenger
must overcome the presumption that a statute is constitutional with a clear
showing of invalidity. Id. If a statute lends itself to both a constitutional
and an unconstitutional interpretation,. we apply the interpretation that
does not violate the constitution. Sheriff v. Wu, 101 Nev. 687, 689-90, 708
P.2d 305, 306 (1985). And in interpreting a constitutional provision, we look
to the rules of statutory construction and interpret unambiguous
constitutional provisions according to their plain meaning. We the People
Nev. ex rel. Angle v. Miller, 124 Nev. 874, 881, 192 P.3d 1166, 1170 (2008).
Thus, the state constitution is to be read as a whole, and “the interpretation
of a statute or constitutional provision will be harmonized with other
statutes or provisions to avoid unreasonable or absurd results.” Id. at 881,
192 P.3d at 1171.
Article 19, Section 2 of the Nevada Constitution sets forth the
people’s power to propose or amend a statute and to propose a constitutional
amendment. In relevant part. it provides that “the 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.” Nev. Const. art. 19, § 2(1). An initiative petition
must be proposed by a qualifying number of registered voters, as verified by
the Secretary of State after the petition has been filed with the Secretary.
Id, art. 19, §§ 2(2), 3. If the initiative petition “proposes a statute or an
amendment to a statute,” the Secretary must submit the petition to the
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2NRS 295.015(1)(b)(3) provides that the initial filing of the petition
with the Secretary of State—before any signatures may be obtained—must
identify no more than three persons authorized to withdraw the petition.
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Secretary's argument rests on Article 19, Section 2 of the Nevada
Constitution. But Section 2 does not address withdrawal of an initiative
petition. And nothing in Section 2 precludes withdrawal. The Secretary
has not identified a specific constitutional limitation on the Legislature’s
power to enact NRS 295.026.
Rather, Article 19, Section 5 of the Nevada Constitution
specifically empowers the Legislature to “provide by law for procedures to
facilitate the operation” of the people’s power to propose statutory and
constitutional amendments by initiative petition. Whether and how a
petition might be withdrawn is independent of the substantive proposal in
the petition; issues regarding withdrawal more reasonably implicate the
Legislature’s power to enact facilitating procedural laws than the general
reservation of the people’s power to propose amendments and to enact or
reject them at the ballot box. Indeed, this court has upheld other statutory
requirements for initiative petitions that might otherwise be considered
improper limitations on the “power to propose” and barred initiative
petitions that failed to meet those statutory requirements. See, ¢e.g., Las
Vegas Convention & Visitors Auth. v. Miller, 124 Nev. 669, 700, 191 P.3d
1138, 1158 (2008) (barring initiative from the ballot for failing to comply
with the circulator’s affidavit requirement set forth in NRS 295.0575);
Nevadans for Nev., 122 Nev. at 940, 950, 142 P.3d at 345, 352 (barring
initiative petition violating the statutory single-subject rule after
concluding that “NRS 295.009’s description of effect requirement and NRS
295.061’s proviso allowing for a challenge to that description are legitimate
procedures”). Accordingly, if a statute is a permissible exercise of the
Legislature's Article 19, Section 5 authority (which we address below with
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respect to NRS 295.026), then it does not violate the reservation of power
by the people in Article 19, Section 2.
The authorities the Secretary relies on to argue that NRS
295.026 infringes on public rights are unavailing. She relies primarily on
three scarcely cited cases—Rea v. City of Reno, 76 Nev. 483, 357 P.2d 585(1960); State v. Scott, 52 Nev. 216, 285 P. 511 (1930); and Wilson v. Koontz,
76 Nev. 33, 348 P.2d 231 (1960)—that are distinguishable and do not stand
for the broad propositions asserted.
The Secretary cites Rea for the proposition that the initiative
process consists of the power to propose a law that must then proceed to a
vote at the polls. This is incorrect. Rea held that the initiative power
reserved to the municipality’s electors was the power to propose laws; such
proposed laws would not be enacted through the initiative petition process
itself but only after approval by the voters. 76 Nev. at 486, 357 P.2d at 586.
The court in Rea thus distinguished the initiative process “from a power
which would effect a legislative act without an election.” Jd. The case does
not speak to whether initiative sponsors may withdraw a petition or
whether an initiative petition’s signatories or the public acquire any rights
in a petition.
The Secretary cites Scott for the proposition that the signatories
control their signatures until the petition has been filed and verified, at
which point the public becomes interested and control passes to the public
from the signatories, who can no longer remove their signatures. This reads
too much into Scott. There, the court considered signatories’ attempts to
withdraw their signatures from a recall petition. 52 Nev. at 224, 285 P. at
512. Scott thus involved the power to stage a special election to recall public
officers, a different constitutional power than that at issue here. See Nev.
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Const. art. 2, § 9 (stating recall power and procedures). Viewing Scott's
holding in context counsels against the Secretary’s broad reading. Notably,
we have never relied on Scoté to interpret the initiative power under Article
19, Section 2. Even assuming that Scott is instructive notwithstanding this
distinction, the court held that the signatories there could not withdraw
their signatures because no statute or constitutional provision permitted
them to do so. 52 Nev. at 229, 285 P. at 514. Scott does not suggest that
upon filing of the recall petition the public obtains a vested right precluding
its withdrawal. Rather, if anything, it suggests that withdrawal is
permissible where, as here, a statute provides for it. See id. at 230, 285 P.
at 515 (quoting Bordwell v. Dills, 66 S.W. 646, 647 (Ark. 1902), for the
proposition that the public becomes interested and signers may not
withdraw their signatures from a recall petition “[iJn the absence of
something in the statute permitting it”).
The Secretary takes Wilson for the proposition that courts may
not read extraconstitutional elements into the initiative power and that to
do so frustrates the aim of permitting the people to legislate directly
through the initiative process. But Wilson merely holds that the initiative
petition provisions are self-executing, such that statutes are not needed to
give them effect. 76 Nev. at 38-39, 348 P.2d at 233-34. Wilson thus has
nothing to say about any statutes that are enacted to facilitate the initiative
power’s operation.
Accordingly, the Secretary of State has not shown that NRS
295.026 is unconstitutional on the premise that it violates the constitutional
rights of initiative petition signatories or the public.
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Withdrawal voids the initiative petitions such that there is no question
for the Secretary of State to place on the ballot
The Secretary of State next argues that NRS 295.026 conflicts
with the duty that she “shall” place a question on the ballot following the
Legislature’s inaction on the petition. The Secretary’s argument neglects
the obligation to harmonize that duty with the Legislature’s power to enact
statutes facilitating the people’s initiative power. And her argument is
especially unpersuasive when considered in light of our precedent
establishing that a withdrawn petition is void and the Secretary of State
has no duty to act with respect to a void petition.
Rogers v. Heller is instructive. Rogers held an initiative void
when it failed to comply with the constitutional requirement that a proposal
making an appropriation must be offset by a sufficient tax. 117 Nev. 169,
171, 18 P.38d 1034, 1035 (2001) (applying Article 19, Section 6 of the Nevada
Constitution). Rogers specifically noted that because the initiative petition
was “void, the Secretary of State’s transmittal of the Initiative to the
Legislature was ineffective, and the Legislature is barred from taking
further action on it.” Id. Three points may be taken from this. First, Rogers
shows that action may not be taken on a void petition and that a void
petition terminates the initiative process and any constitutional duties that
might otherwise be owed as part of that process. Second, NRS 295.026 was
enacted after Rogers, and its mandate in subsection 2 that “no further action
may be taken on that [withdrawn] petition” closely mirrors the Rogers
statement barring the Legislature from “taking further action on” a void
initiative, see 2017 Nev. Stat., ch. 505, § 30, at 3369 (enacting NRS 295.026),
i suggesting that the language should be read similarly. Third, Rogers
concerned an initiative petition that the Secretary of State had verified and
transmitted to the Legislature, 117 Nev. at 172, 18 P.3d at 1086, and on
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which the Legislature did not act after the court barred it from doing so.
Under the Secretary of State’s reasoning here, the Secretary in Rogers
would have been compelled to place the question on the ballot because of
legislative inaction even though the court had determined the initiative
petition was void.2 That outcome would have been both unreasonable and
absurd. It would have presented to the voters a ballot question that was
facially unconstitutional. Rogers instructs that an initiative on which
action may not be taken is void and that a void initiative terminates the
process set forth in Article 19, Section 2, including any constitutional duties
that might otherwise be owed as part of the initiative process.*
8The 2002 general election bailot did not include the question
proposed by the initiative petition invalidated in Rogers (the “Nevada Tax
Fairness and Quality School Funding Accountability Act”). See generally
Rogers, 117 Nev. at 172, 18 P.3d at 1035 (describing the proposed statutory
amendment); Dean Heller, Sec’y of State, State of Nev. Statewide Ballot
Questions 2002, https://www.leg.state.nv.us/Division/Research/VoteNV/
BallotQuestions/2002.pdf (ast visited June 10, 2022),
4The Secretary of State takes Rogers for the proposition that
withdrawing a petition is impermissible because Rogers barred the
Legislature from altering the proposed amendment to cure the
constitutional deficiency. This is mistaken in several regards. First, Rogers
rejected an argument that the unconstitutional provisions could be severed,
concluding that severability applied to formally enacted statutes, not
proposed amendments. 117 Nev. at 177, 18 P.3d at 1039. Rogers thus
considered a narrow issue in that regard. Second, Rogers observed that the
constitution expressly prohibited the Legislature from changing the
initiative petition’s proposal, which it must enact or reject as posed. Id. at
178, 18 P.3d at 1040. In contrast, Article 19 does not expressly address
withdrawal whatsoever but does authorize the Legislature to enact statutes
that facilitate operation of the initiative power. Third, Rogers concluded
that the initiative petition “should proceed, if at all, as originally proposed
and signed.” Jd. at 178, 18 P.3d at 1039-40 (emphasis added). Because the
emphasized language indicates it is not a given that the initiative petition
must proceed, Rogers does not support the proposition that withdrawal is
constitutionally improper.
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The court reached conclusions similar to Rogers in Glover v.
Concerned Citizens for Fuji Park & Fairgrounds. Glover held that an
initiative petition concerning an administrative act was not within the
initiative power’s scope, which encompasses only legislative and not
administrative action. 118 Nev. 488, 494, 50 P.3d 546, 549 (2002), overruled
in part on other grounds by Garvin v. Ninth Judicial Dist. Court, 118 Nev.
749, 59 P.3d 1180 (2002). The court observed that “the requirement that an
initiative propose only legislation is a threshold requirement” because it
goes to the scope of the people’s initiative power and, therefore, “an
initiative that fails to meet [this] threshold [requirement] is void.” Jd. at
498-99, 50 P.3d at 552. Like the case before us today, Glover involved a
verified initiative petition that was not acted on by the legislative entity.
id. at 490-91, 50 P.3d at 547-48. Based on the court’s decision that
it was void, the petition was not ultimately placed on the ballot in
that form. See Carson City Ballot Questions from 1970 thru Present,
at 19, https://www.carson.org/home/showpublisheddocument/37739/
635984946921000000 (last visited June 10, 2022) (listing different ballot
question involving Fuji Park).
Although Rogers and Glover involved petitions that were void
because they did not comply with constitutional requirements, initiative
petitions may also be void if they fail to comply with statutory requirements;
voidness thus does not turn solely on constitutional compliance. For
example, in Las Vegas Convention & Visitors Authority v. Miller, we
concluded that signatures on an initiative petition were void when they
failed to meet statutory requirements. 124 Nev. 669, 673, 191 P.3d 1138,
1141 (2008). As a result, we concluded that the initiative petition question
was barred from appearing on the ballot. Jd. at 700, 191 P.3d at 1158; see
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also Lauritzen v. Casady, 70 Nev. 136, 261 P.2d 145 (1953) (failure of county
commission to schedule election within statutory time requirements
rendered the election void).
| The Secretary of State argues that this court has held that a
petition must be placed on the ballot even if it may be unconstitutional and
thus futile, citing Greater Las Vegas Chamber of Commerce v. Del Papa, 106
Nev. 910, 802 P.2d 1280 (1990). This misunderstands that decision, which
held that an initiative question may not be excluded from the ballot based
on the possibility that the substantive change it proposes will be found
unconstitutional in the future should it be approved. Greater Las Vegas
Chamber of Commerce, 106 Nev. at 917, 802 P.2d at 1281. In fact, Greater
Las Vegas Chamber of Commerce supports barring the initiatives’ questions
at issue here from the ballot, given that it recognized that “this court has
intervened to prevent a ballot question from going to a vote of the people”
where a procedural violation was present. 106 Nev. at 916, 802 P.2d at
1281. Where an initiative sponsor has filed a petition withdrawal form with
the Secretary of State to render the initiative void, there is a procedural
deficiency, not a substantive deficiency with the proposal. See Herbst
Gaming, Inc. v. Heller, 122 Nev. 877, 883, 141 P.38d 1224, 1228 (2006)
(explaining the different types of challenges that may be levied against an
initiative petition and providing that challenges “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”).
We conclude that NRS 295.026(2)’s directive that “no further
action may be taken on [a] petition” after it has been withdrawn renders a
withdrawn initiative petition void. Based on our precedent, a void petition
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is excluded from the initiative process set forth in Article 19. This construes
NRS 295.026 in a way that is constitutional and neither absurd nor
unreasonable. It further harmonizes the Legislature’s power to enact
facilitating laws with the Secretary of State’s duty to place measures on the
ballot.
NRS 295.026 facilitates the provisions in Article 19 guaranteeing the
initiative power to the people
Lastly, the Secretary of State argues that NRS 295.026 does not
facilitate the provisions of Article 19 but instead infringes on rights
reserved to the people. For the reasons discussed above, NRS 295.026 does
not infringe on the reservation provision stated in Article 19, Section 2(1).
Further, the statute facilitates the operation of Article 19’s provisions
guaranteeing the people’s initiative power.
As noted, Article 19, Section 5 of the Nevada Constitution
provides that the Legislature “may provide by law for procedures to
facilitate the operation” of the provisions of Article 19. This court has
upheld statutes governing the initiative-petition process where those
statutes facilitate rather than obstruct the exercise of the initiative power.
See, e.g., Educ. Intitative PAC v. Comm. to Protect Nev. Jobs, 129 Nev. 35,
37, 293 P.3d 874, 876 (2013) (concluding that the statutorily required
description of the initiative’s effect facilitates rather than obstructs the
initiative power so long as the description is straightforward, succinct, and
nonargumentative); Nevadans for Nev. v. Beers, 122 Nev. 930, 940, 142 P.3d
339, 345 (2006) (holding that statutes requiring a description of the
initiative’s effect and permitting a challenge to that description facilitate
the people’s initiative power); Nevadans for the Prot. of Prop. Rights, Inc. v.
| Heller, 122 Nev. 894, 902, 141 P.3d 1235, 1240 (2006) (holding that a statute
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616, 621, 6 P.3d 465, 468 (2000) (reviewing district court’s decision on a writ
petition for an abuse of discretion); Lundberg v. Koontz, 82 Nev. 360, 363,
418 P.2d 808, 809 (1966) (“Mandamus is appropriate to prevent improper
action by the Secretary of State, as well as to compel him to perform an act
which is his duty under the law.”).
CONCLUSION
Article 19 of the Nevada Constitution sets out the initiative
petition process, does not specifically bar withdrawal of an initiative
petition, and permits the Legislature to enact statutes facilitating the
initiative-petition process. NRS 295.026 facilitates this process by stating
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the withdrawal power and imposing deadlines on its exercise. The statute
gives petition sponsors the ability to respond to changed circumstances and
clarity as to how and when withdrawal is performed. NRS 295.026 is thus
facially constitutional. NRS 295.026 provides that no action may be taken
on a petition that has been timely withdrawn. Accordingly, a withdrawn
petition is void. Because the petitions here are void, the Secretary’s duty to
place them on the ballot has been nullified, consistent with our precedent
barring placement of void initiative petitions on the ballot, regardless of
whether they have been verified. Withdrawal of the initiative petitions does
not infringe upon any constitutional right or duty. We therefore affirm the
district court’s grant of mandamus relief. But because the act of placing a
matter on the ballot is ministerial, not judicial or quasi-judicial, and thus
was not the type of conduct falling within the scope of a writ of prohibition,
we reverse the district court order to the extent that it granted a writ of
prohibition.
. C Q J
Stiglich
We concur:
J.
Parraguirre
(opr. A—
Cadish Herndon
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HARDESTY, J., with whom SILVER and PICKERING, JJ., agree,
concurring in part and dissenting in part:
When the Legislature has rejected or not timely acted upon a
verified initiative petition proposing a statutory amendment or enactment,
Article 19, Section 2(3) of the Nevada Constitution provides that the
Secretary of State shall submit the question proposed for approval by the
voters by placing the question on the next general election ballot. NRS
295.026 obstructs the Secretary’s duty in this regard by terminating the
mandatory constitutional process set forth here, and the court accordingly
should have held NRS 295.026 unconstitutional. I disagree with the
majority's conclusion to the contrary and respectfully dissent in part.
The plain language of Article 19, Section 2 of the Nevada
Constitution provides all the guidance that the court needs to resolve this
appeal. This court applies unambiguous constitutional provisions according
to their plain language, Nevadans for Nev. v. Beers, 122 Nev. 930, 942, 142
P.3d 339, 347 (2006), and I find no ambiguity in the relevant constitutional
provisions here. As the majority correctly observes, this section states the
people’s power to propose a statute, statutory amendment, or constitutional
amendment and to decide on that proposal at the polls. Nev. Const. art. 19,
§ 2(1).
Critically, Article 19 spells out the precise procedure for
exercise of the initiative right in detail, and I maintain that this procedure
must be adhered to in order to protect and implement the right it
establishes. See We the People Nev. ex rel. Angle v. Miller, 124 Nev. 874,
881, 192 P.3d 1166, 1170-71 (2008) (“When the Legislature’s intent is clear
from the plain language, this court will give effect to such intention and
construe the statute’s language to effectuate rather than nullify its manifest
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purpose.”). Where an initiative petition proposes to enact or amend a
statute, Section 2 requires it to be signed by at least 10 percent of the voters
who voted in the most recent general election in at least 75 percent of the
state’s counties, including at least 10 percent of those who voted statewide.
Nev. Const. art. 19, § 2(2). Upon filing with the Secretary of State,
circulation of the petition ceases, and that office takes up its charge to verify
that the signatures affixed to the petition suffice. Jd. art. 19, §§ 2(3), 3.
Once verified, “[t]he Secretary of State shall transmit such petition to the
Legislature as soon as the Legislature convenes and organizes.” Id. art. 19,
§ 2(3) (emphasis added). Now subject to the Legislature’s consideration,
“tlhe petition shall take precedence over all other measures except
appropriation bills, and the statute or amendment to a statute proposed
thereby shall be enacted or rejected by the Legislature without change or
amendment within 40 days.” Jd. (emphases added). If the Legislature
wants to substitute something else for what the voters have proposed, the
constitution prescribes the route it must pursue: “If the Legislature rejects
such proposed statute or amendment, the Governor may recommend to the
Legislature and the Legislature may propose a different measure on the
same subject, in which event, after such different measure has been
approved by the Governor, the question of approval or disapproval of each
measure shall be submitted by the Secretary of State to a vote of the voters
at the next succeeding general election,” together with the version proposed
by the petition. Zd. The plain language of Article 19, Section 2 sets forth
the initiative power in exacting detail and gives little doubt that each
successive step in its procedure is mandatory. See NRS 0.025(1)(d) (“Shall’
imposes a duty to act.”).
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Looking to the initiative petitions before us, the steps detailed
above in Article 19, Section 2 were all followed up to the point that the
Secretary of State transmitted the proposals to the Legislature. However,
the essence of the dispute here lies in the Legislature’s addition of a new
option to those given by Article 19, namely, the withdrawal of an initiative
petition. The withdrawal clearly contradicts the next step in the procedure,
where after transmittal to the Legislature, if that body rejects or does not
timely act on the petition, as here, “the Secretary of State shall submit the
question of approval or disapproval of such statute or amendment to a
statute to a vote of the voters at the next succeeding general election.” Nev.
Const. art. 19, § 2(3) (emphasis added). Post-transmittal withdrawal that
prevents the voters from considering the proposal at the next election is not
one of the options the constitution provides. I conclude that the plain
language of the provision provides the court with clear guidance: the
Secretary must place the initiative petitions’ questions on the ballot under
the circumstances presented. The majority instead treats the Secretary’s
constitutional duty here as a matter that may be prematurely nullified by
the withdrawal power stated in NRS 295.026. I disagree with the majority’s
decision to interpret NRS 295.026 so as to deviate from and thwart a clear
constitutional obligation. See Strickland v. Waymire, 126 Nev. 230, 241,
235 P.3d 605, 613 (2010) (“The constitution may not be construed according
to a statute enacted pursuant thereto; rather, statutes must be construed
consistent with the constitution—and rejected if inconsistent therewith.”
(internal quotation marks and citation omitted)).
This obstruction shows that the court should have held NRS
295.026 unconstitutional, as applied to allow withdraw after a proposal has
| qualified for and been transmitted to the Legislature. While statutes may
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P.3d 874, 876 (2013) (observing the limitation on the Legislature’s power to
enact statutes concerning the initiative power). Here, too, I differ with the
majority. As applied here, NRS 295.026(2) bars action on an initiative
petition that has been withdrawn, even after its transmittal to the
Legislature, at which point, assuming the Legislature does not enact the
proposed statute, the constitution requires the proposal to be placed on the
ballot. By inserting an additional step in the constitutionally outlined
process that prevents subsequent popular vote on a withdrawn matter, the
statute obstructs the constitutional process set forth in Article 19, Section
2 and thus should be held to constitute an unconstitutional exercise of the
Article 19, Section 5 authority that empowers the Legislature to enact laws
subject to this important constraint. Cf Nevadans for the Prot. of Prop.
Rights, Inc. v. Heller, 122 Nev. 894, 902, 141 P.3d 1285, 1241 (2006)
(rejecting a challenge to a statute’s constitutionality where the statute
properly facilitated the initiative power). The Article 19 initiative power
comprises all of its provisions, and each must be given its force as
enumerated; this includes the Secretary's duty to place the questions posed
by the initiative petitions here on the ballot. See Nevadans for Nev., 122
Nev. at 944, 142 P.3d at 348 (“The Nevada Constitution should be read asa
whole, so as to give effect to and harmonize each provision.”). In frustrating
the fulfillment of this obligation, NRS 295.026 obstructs instead of
facilitates the initiative power. See Rogers v. Heller, 117 Nev. 169, 177-78,
18 P.3d 1034, 1039 (2001) (quoting with approval a California Court of
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Appeals decision recognizing that California’s initiative power allowed the
people to propose and adopt their own laws, so long as “certain legal
procedure be followed to properly place said laws before the voters”); see also
We the People, 124 Nev. at 891-92, 192 P.3d at 1177-78 Gnvalidating a
statute providing for a filing deadline that conflicted with the inflexible
deadlines set forth in Article 19). The court should have concluded its
analysis there and determined that the district court abused its discretion
in granting writ relief that impeded the constitutional process, specifically,
the Secretary of State’s constitutionally outlined duty to place the initiative
petitions’ proposals on the general election ballot after the proposals were
transmitted to the Legislature and not enacted.
Instead, the majority turns to voidness to create a break
interrupting the constitutional process, without any provision in Article 19
permitting the procedure set forth to be terminated by statute. While our
decisions have undoubtedly recognized that petitions are void in certain
instances for constitutional violations, see, e.g., Rogers, 117 Nev. at 171, 18
P.3d at 1035 (holding that a violation of Article 19, Section 6 of the Nevada
Constitution rendered the petition void), and that signatures are void where
they fail to substantially comply with statutory requirements, Las Vegas
Convention & Visitors Auth. v. Miller, 124 Nev. 669, 673, 191 P.3d 1138,
1141 (2008), this court has not concluded that a statutory authorization may
enable an entity to interfere with the constitutional process set forth in
Article 19. The majority overreaches in taking from this line of authorities
the conclusion that NRS 295.026 may constitutionally void a verified
initiative petition in the circumstances of this case. I disagree that our
precedents encompass the majority's construction of voidness in this
context.
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As a procedural matter, I agree with the majority that the writ
of prohibition was not the proper vehicle for the district court to decide this
case. While I concur with the majority to that limited extent, because I
disagree that the Secretary of State’s constitutional obligation could be
negated, I respectfully otherwise dissent.
A knee, J.
Hardesty
We concur:
3 £ Luts ) , Jd.
Silver
Proton tip LJ
Pickering )
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