ED. FREEDOM PAC v. REID (BALLOT ISSUE) , 2022 NV 47 ( 2022 )

138 Nev., Advance Opinion {")
IN THE SUPREME COURT OF THE STATE OF NEVADA
EDUCATION FREEDOM PAC, No. 84736
Appellant,
Vs. .
RORY REID, AN INDIVIDUAL; i [ L - Ds 3
BEVERLY ROGERS, AN INDIVIDUAL; 5
AND BARBARA K. CEGAVSKE, IN
HER OFFICIAL CAPACITY AS JUN 28 2022
NEVADA SECRETARY OF STATE, STHA BR
Respondents.
heF DEPUTY EF DEPUTY CIERK
Appeal from a district court order enjoining an initiative
petition’s circulation and the initiative’s placement on the ballot. First
Judicial District Court, Carson City; Charles M. McGee, Senior Judge.
Affirmed.
Hutchison & Steffen, LLC, and Jason D. Guinasso, Alexander R. Velto, and
Astrid Alondra Perez, Reno,
for Appellant.
Aaron D. Ford, Attorney General, Craig A. Newby, Deputy Solicitor
General, and Laena St-Jules, Deputy Attorney General, Carson City,
for Respondent Secretary of State.
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Bradley S. Schrager,
John M. Samberg, and Daniel Bravo, Las Vegas,
for Respondents Rory Reid and Beverly Rogers.
BEFORE THE SUPREME COURT, EN BANC.
SupREME Court
OF
NEVADA
(0) 1947A 22- vyol
CESSES PIED i hones ee le on a Oe SO aks |
OPINION
By the Court, HARDESTY, J.:
The Nevada Constitution gives the people the power to enact
laws by initiative petition, subject to the petition meeting constitutional and
statutory requirements. First and foremost, under the Nevada
Constitution, an initiative petition cannot require appropriations or
expenditures without providing funding for those appropriations or
expenditures. Reading the relevant state constitutional provisions in
harmony, this requirement applies to initiatives proposing constitutional or
statutory changes. Additionally, by statute, the description of effect for an
initiative petition must adequately inform potential signatories about the
petition’s goal. Lastly, an initiative petition cannot invade the Legislature’s
primary role of proposing and enacting laws, a function that inherently
includes deliberation and debate during legislative sessions, by directing a
future Legislature to enact certain laws. This occurs when an initiative
petition omits necessary statutory or constitutional changes and instead
proposes a general idea and then directs the Legislature to enact laws to
effectuate that idea at some future date.
The initiative before us in this matter falls short of all three of
these requirements. Thus, we conclude the district court properly enjoined
the circulation of the initiative petition and enjoined respondent Secretary
of State from placing the initiative on the ballot. We also conclude that the
statutory requirement to set a hearing on a complaint challenging an
initiative within 15 days is directory, not mandatory, and under the
circumstances here, the district court properly declined to dismiss the
complaint despite not having set the hearing within that time frame.
SuPREME Court
OF
NEVADA
bo
(0) 1947A
Legislature must establish an eligibility criteria for
parents to establish an account.
The initiative will result in the expenditure of state
funds to fund the accounts in an amount
comparable to the public support that would be
used to support the education of the child for whose
benefit the account has been established in a public
school. For Fiscal Year 2021-2022, the Legislature
determined the statewide base per pupil amount to
be $6,980 per pupil. For Fiscal Year 2022-20238,
that amount is $7,074 per pupil. Generating the
revenue to fund the accounts could necessitate a tax
increase or a reduction in government services.
The Legislature must establish the program by the
start of the school year that commences in 2025.
Respondents Rory Reid and Beverly Rogers (collectively
referred to as Reid) filed a complaint for declaratory and injunctive relief
challenging the initiative in the district court. On the same day Reid filed
his complaint, the assigned district court judge recused himself. Nine days
later, Senior Judge Charles McGee was assigned to handle the matter, after
Reid exercised a peremptory challenge on the remaining district court
judge. EFP then intervened in the matter and filed an answer and a brief
challenging the district court’s authority to hear the matter given that no
hearing had been set within 15 days, as is statutorily required.
Thirty days after Reid filed his complaint, the district court set
the matter for a hearing. After the hearing, the court entered an order
enjoining EFP from circulating the initiative petition for signatures and
enjoining respondent Secretary of State from including the initiative on the
ballot. First, the district court concluded that while the hearing had not
been set within 15 days after the complaint was filed, dismissal was
unnecessary because the hearing was expedited to the best of the court's
ability. Second, the court concluded the initiative was invalid for three
SuPREME CourT
OF
NEVADA
(0) 147A 124 Nev. 1079, 1086, 194 P.38d 1254, 1259 (2008).
Determining whether a statute’s provision is mandatory or directory is a
question of statutory interpretation, which we review de novo. Markowitz
v. Saxon Special Servicing, 129 Nev. 660, 665, 310 P.3d 569, 572 (2013). “As
with most issues pertaining to statutory construction, our goal is to
determine and implement the Legislature’s intent.” Village League, 124
Nev. at 1087, 194 P.3d at 1260.
In Village League, this court considered the policy and equity
considerations underlying a statute that required the State Board of
Equalization to conclude certain cases by certain dates. Jd. at 1087-88, 194
: ° P.3d at 1260. We concluded that requiring cases to conclude by those dates
NEVADA
5
(0) 1947A RB
would result in some taxpayer appeals being unheard, thus leading to
“harsh, unfair or absurd consequences.” Id. at 1088, 194 P.3d at 1260-61
(internal quotation marks omitted). Therefore, this court concluded that
the statute’s time requirements were directory, despite the statute’s use of
the term “shall.” Jd. at 1089, 194 P.3d at 1261.
Here, under NRS 295.061(1), the court had 15 days after Reid
filed the February 22 complaint to set a hearing, and the court did not do
so. Instead, after the matter was assigned to Senior Judge McGee, he
promptly entered an order, 29 days after the complaint was filed, directing
the court clerk to set a hearing for the next week. The next day, the matter
was set for a hearing on March 29,
Whether the district court was compelled to dismiss the
complaint as a result turns on whether the 15-day hearing-setting
requirement is mandatory or directory. Although the statute uses the term
“shall,” which is generally mandatory, Markowitz, 129 Nev. at 665. 310 P.3d
at 572, we conclude the 15-day requirement in NRS 295.061(1) is directory,
given the legislative history as well as policy and equity considerations
implicated by challenges to initiative petitions.
First, the statute’s legislative history is instructive. In 2007,
the Legislature reduced the statutory time frame to set a hearing from 30
days to 15 days. 2007 Nev. Stat., ch. 118, § 3, at 326-27. When legislators
expressed concerns that the shortened time would prevent the adjudication
of complaints challenging a petition and “remove the opportunity for those
complaints to be fully vetted by the courts,” Senator Bob Beers, who
proposed the amendment, stated that the statute “does not compromise the
ability to adjudicate an issue” and instead merely requires the court to
prioritize these cases over the rest of its dacket. Hearing on 5.B. 230 Before
5 ° the S. Comm. on Legis. Operations and Elections, 74th Leg. (Nev., Mar. 27,
NeEvapDa
6
(0) 1947A 126 Nev. 599, 603, 245 P.3d
572, 575 (2010). Otherwise, challenges to initiative petitions could be used
as a delay tactic to prevent an initiative from being placed on the ballot. See
Pest Comm. v. Miller, 626 F.3d 1097, 1109 (9th Cir. 2010) (recognizing “that
challenges by opponents have tied initiative petitions up in litigation for
extended periods of time or that, in some cases, they have left the
5 ° proponents without sufficient time to gather signatures”). Here, special
UPREME GOURT
OF
NevaDA
t
(0) 1947A
circumstances prevented the district court from timely setting the hearing,
and the district court set the hearing as quickly as those circumstances
permitted and without excessive delay. Accordingly, because the 15-day
requirement for setting the hearing is directory, and considering the special
circumstances of this case, the district court did not err in denying EFP’s
request to dismiss the complaint.
The district court properly enjoined the EFP initiative’s circulation and
placement on the ballot
Next, we consider the district court’s decision to enjoin the
circulation of the initiative petition for signatures and to enjoin the
Secretary of State from placing the initiative on the ballot. This court
reviews de novo a district court’s order granting injunctive and declaratory
relief. Educ. Initiative PAC v. Comm. to Protect Nev. Jobs, 129 Nev. 35, 41,
293 P.3d 874, 878 (2013).
The initiative fails to comply with constitutional requirements
EFP argues that its initiative did not need to comply with
Article 19, Section 6 of the Nevada Constitution regarding unfunded
mandates, and regardless, it complied with that section because the
initiative does not include any expenditures or appropriations and leaves it
to the Legislature to fund the education freedom accounts.
All initiatives must comply with Article 19, Section 6
EFP contends that it did not have to comply with the
requirement to include funding provisions because it proposed only a
constitutional change. We disagree.
Article 19, Section 2 of the Nevada Constituticn provides that
“subject to the limitations of Section 6 of this Article, 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
SUPREME Court
OF
NEVADA 8
(0) 147A ERB
or reject them at the polls.” Section 6 provides that Article 19 “does not
permit the proposal of any statute or statutory amendment which makes an
appropriation or otherwise requires the expenditure of money, unless such
statute or amendment also imposes a antticlent tax, not prohibited by the
Constitution, or otherwise constitutionally provides for raising the
necessary revenue.” Nev. Const. art. 19, § 6.
“This court reviews questions of constitutional interpretation
de novo.” Ramsey v. City of North Las Vegas. 133 Nev. 96, 98, 392 P.3d 614,
616 (2017). “Constitutional interpretation utilizes the same rules and
procedures as statutory interpretation.” Landreth v. Malik, 127 Nev. 175,
180, 251 P.3d 163, 166 (2011). This court will first look to the plain meaning
of the constitutional provision, and only if it is ambiguous will this court
“look to the history, public policy, and reason for the provision.” Jd. A
constitutional provision is ambiguous if “it is susceptible to two or more
reasonable but inconsistent interpretations.” Jd. (internal quotation marks
omitted). Additionally, an internal conflict within the constitutional
provision’s language can render it ambiguous. Orion Portfolio Servs. 2, LLC
v. County of Clark ex rel. Univ. Med. Ctr. of S. Nev., 126 Nev. 397, 402, 245
P.3d 527, 531 (2010). Further, much like when the court construes statutes,
in construing constitutional provisions, this court must consider the
multiple provisions of the constitutional article as a whole. See, e.g., id. at
403, 245 P.3d at 531 (providing that when this court engages in statutory
interpretation, it must “consider the statute’s multiple legislative provisions
as a whole” (internal quotation marks omitted)).
We conclude that Article 19, Section 6 is ambiguous because it
conflicts internally with Article 19, Section 2. Article 19, Section 2 provides
that all initiative petitions, regardless of whether they propose statutory or
constitutional changes, are subject to Article 19, Section 6’s requirement to
SUPREME GourT
OF
NEvaDA
9
(0) 1947A 117 Nev. 169, 178,
18 P.3d 1034, 1036 (2001) (emphasis in original). And like our conclusion
here, Rogers recognized that Article 19, Section 2 requires all initiative
petitions to comply with Article 19, Section 6. Jd. We have also recognized
that Article 19, Section 6’s “requirement that an initiative involving an
appropriation or expenditure include a revenue-generating provision
prevents the electorate from creating the deficit that would result if
government officials were forced to set aside or pay money without
1The dissent argues that public policy precludes the inclusion of
funding provisions within the constitution. We are not concluding that
funding provisions must be included in the constitution, as they could be
addressed by statute.
11
SupREME Court
OF
NEVADA
(0) 1947A 122 Nev. 877,
890-91, 141 P.3d 1224, 1233 (2006). This purpose is only achieved if Article
19, Section 6 applies to all initiative petitions.
Accordingly, we conclude that all initiative petitions must
comply with Article 19, Section 6’s requirement that initiatives requiring
expenditures or appropriations contain a funding provision. This reading
harmonizes Section 6 with the rest of Article 19. See Orion Portfolio Servs.,
126 Nev. at 402, 245 P.3d at 531 (providing that we must construe multiple
statutory provisions as a whole). Thus, regardless of whether the initiative
petition is proposing statutory or constitutional changes, if the initiative
requires expenditures or appropriations, it must include funding provisions.
EFP’s initiative is an unfunded mandate
Because the underlying initiative must comply with Article 19,
Section 6, we next turn to EFP’s argument that the district court erred by
concluding that the initiative requires an appropriation or expenditure.
EFP argues that the initiative does not require money to be taken from the
treasury and instead only requires the Legislature to make an
appropriation after enacting laws to effectuate the education freedom
accounts. Because the initiative does not include any explicit expenditure
or appropriation, EFP contends it did not need to include a funding
provision. EFP asserts that the funding issue is left up to the Legislature.
This court has recognized that an initiative that “makes an
appropriation or requires an expenditure of money” is void if it does not also
provide for the necessary revenue. Rogers, 117 Nev. at 173, 18 P.8d at 1086.
“[A]n appropriation is the setting aside of funds, and an expenditure of
money is the payment of funds.” Jd. “A necessary appropriation or
expenditure in any set amount or percentage is a new requirement that
otherwise does not exist.” Id. at 176, 18 P.3d at 1038. “[A]n initiative makes
12
an appropriation or expenditure when it leaves budgeting officials no
discretion in appropriating or expending the money mandated by the
initiative—the budgeting official must approve the appropriation or
expenditure, regardless of any other financial considerations.” Herbst
Gaming, 122 Nev. at 890, 141 P.3d at 1233. Because Article 19, Section 6
is “a threshold content restriction,” if an initiative does not comply with that
section, the initiative is void. Rogers, 117 Nev. at 173, 18 P.3d at 1036.
EFP’s initiative clearly requires an appropriation of funds. EFP
even acknowledges this in its own description of effect, when it states that
the changes may necessitate a tax increase or a reduction in government
services. The fact that the initiative leaves it up to the Legislature to
determine how to fund the proposed change does not exclude the initiative
from the funding mandate. The initiative is creating a new requirement for
the appropriation of state funding that does not now exist and provides no
discretion to the Legislature about whether to appropriate or expend the
money. It requires the Legislature to fund the education freedom accounts.
Thus, the initiative does not comply with Article 19, Section 6, and the
district court properly determined it is void.
The description of effect is misleading
The district court determined that the initiative’s failure to
comply with Article 19, Section 6 is not the only reason it is void. It
concluded that EFP also failed to provide an adequate description of effect
for the initiative. We agree with the district court’s analysis as to the
description of effect.
NRS 295.009(1)(b) requires each initiative to “[s]let forth, in not
more than 200 words, a description of the effect of the initiative... if the
initiative ...is approved by the voters.” A description of effect “must be a
straightforward, succinct, and nonargumentative summary of what the
SuprEME Court
OF
NEVADA
(0) 147A EB
13
SuprREME Court
OF
NEVADA
(0) 167A 129 Nev. 35, 37, 293
P.3d 874, 876 (2013). Also, the description of effect must “not be deceptive
or misleading.” Jd. at 42, 293 P.3d at 879. The description of effect
“facilitates the constitutional right to meaningfully engage in the initiative
process by helping to prevent voter confusion and promote informed
decisions.” Las Vegas Taxpayer Accountability Comm. v. City Council of Las
Vegas, 125 Nev. 165, 177, 208 P.3d 429, 487 (2009) Gnternal quotation
marks omitted). |
The description of effect here provides that “[t]he initiative will
result in the expenditure of state funds to fund the accounts in an amount
comparable to the public support that would be used to support the
education of the child.” It then states that the per-pupil expenditure base
for fiscal year 2021-2022 was $6,980 and the per-pupil expenditure base for
fiscal year 2022-2023 was $7,074. Lastly, it states that “[g]enerating the
revenue to fund the accounts could necessitate a tax increase or a reduction
in government services.” (Emphasis added.)
The description of effect omits the need for or nature of the
revenue source to fund the proposed education freedom accounts. Because
the initiative petition does not include its own funding source, the
description of effect is misleading about the impact the proposed change
would have on the state’s budget. The inevitable ramification of this
initiative is either an increase in taxes or a reduction in public school
funding or other government services, and the description of effect’s failure
to address this substantial impact is a material omission. Additionally,
because the examples included in the description of effect are lower than
14
SUPREME COURT
OF
NEVADA
(0) 147A ERB
the amounts of actual per-pupil funding for the cited fiscal years,? the
description of effect misleads signatories into thinking that the impact on
the state’s resources would be less substantial. The description of effect is
deceptive and misleading about the substantial fiscal impact the proposed
change would have on the state’s budget, and the district court properly
determined that these deficiencies render the initiative void. See Las Vegas
Taxpayer, 125 Nev. at 182, 208 P.3d at 440 (explaining that “the description
of effect is a statutory requirement for placement on the ballot’).
The initiative impedes the Legislature's deliberative function
Lastly, EFP contends that because there are numerous
constitutional provisions directing the Legislature to enact laws to
effectuate those provisions, an initiative petition proposing a constitutional
amendment that directs the Legislature to enact laws is not improper.
Thus, EFP argues that the district court.erred in concluding that the
initiative petition was void because it would impair the Legislature’s
inherent deliberative function. We disagree.
As an initial matter, we must determine whether Reid’s
challenge to the initiative in this regard is proper for our consideration
preelection. As we explained in Herbst Gaming, and as relevant here, there
are two types of challenges to an initiative that are appropriate for
preelection consideration: (1) those based on an argument that the initiative
did not meet the procedural requirements for placing an initiative on the
ballot, and (2) those based on a contention that “the subject matter is not
appropriate for direct legislation under constitutional or statutory limits on
2Reid asserts that the correct per-pupil expenditure base for fiscal
year 2021-2022 is $10,204 and for fiscal year 2022-2023 is $10,290, and EFP
does not contest those numbers.
15
SupREME Court
OF
NEVADA
(0) 147A EBRD
the initiative power.” 122 Nev. at 882-83, 141 P.3d at 1228. The legislative
power “refers to the broad authority to enact, amend, and repeal laws.”
Halverson v. Hardcastle, 123 Nev. 245, 260, 163 P.3d 428, 4389 (2007).
Because Reid’s challenge is based on the idea that the Legislature itself
would not be permitted to enact the change proposed in the initiative, we
conclude his challenge falls under the second type of challenge permitted
preelection.
“The people’s initiative power is ‘coequal, coextensive, and
concurrent’ with that of the Legislature; thus, the people have power that
is legislative in nature.” Nevadans for the Prot. of Prop. Rights, Inc. v.
Heller, 122 Nev. 894, 914, 141 P.3d 1235, 1248 (2006) (quoting Gallivan v.
Walker, 54 P.3d 1069, 1080 (Utah 2002)). Because the people’s initiative
power is legislative in nature, that power is subject to the same limitations
placed on each Legislature. “Implicit in the plenary power of each
legislature is the principle that one legislature cannot enact a statute that
prevents a future legislature from exercising its law-making power,” and
there is “a general rule that one legislature cannot abridge the power of a
succeeding legislature.” Wash. State Farm Bureau Fed’n v. Gregoire, 174
P.3d 1142, 1150 (Wash. 2007); see also Ex parte Collie, 240 P.2d 275, 276
(Cal. 1952) (“It is the general rule that one legislative body cannot limit or
restrict its own power or that of subsequent Legislatures and that the act of
one Legislature does not bind its successors.”); N.D. Legis. Assemb. v.
Burgum, 916 N.W.2d 83, 91 (N.D. 2018). Thus, the people, acting through
the initiative power, can no more command the next Legislature to take
specific legislative action than a current Legislature can bind a future one.
Accordingly, if an initiative seeks to effectuate a change, its
provisions must include the new laws or amendments to current laws that
effectuate that change, rather than directing the Legislature to enact laws
16
Supreme Court
OF
NEVADA
(0) 197A <>
to accomplish the initiative’s proposed change. “If the people have the
power to enact a measure by initiative, they should do so directly ....” Am.
Fed’n of Lab. v. Eu, 686 P.2d 609, 627 (Cal. 1984). By directing the
Legislature to enact laws in accordance with the change proposed in the
initiative petition, the initiative impairs the Legislature’s deliberative
function. The Legislature no longer has the discretion to determine whether
the enactment of laws giving effect to the initiative’s proposed change is
proper, warranted, or in the best interest of each individual legislator’s
constituents.
EFP proposes a constitutional amendment that merely directs
the Legislature to enact laws creating education freedom accounts with
unspecified eligibility criteria and funding sources. Not only does this
impede the Legislature’s inherent discretion in adopting or amending laws,
but it places an unclear change in front of the electorate by not providing
how the proposed change will be effectuated. Such initiative petitions are
not a permissible exercise of the people’s initiative power. Accordingly, we
conclude the district court properly declared the underlying initiative void
as impairing the Legislature’s deliberative function.
CONCLUSION
The district court did not err in denying EFP’s request to
dismiss Reid’s challenge to the initiative petition based on the court’s
noncompliance with NRS 295.061(1)’s 15-day hearing-setting requirement,
as that requirement is directory rather than mandatory. Additionally, the
district court did not err in enjoining the circulation of the initiative petition
or in enjoining the Secretary of State from placing the initiative on the
ballot. All initiative petitions must comply with Article 19, Section 6 of the
Nevada Constitution, which demands that any initiative requiring an
appropriation or expenditure must also include a funding - provision.
17
Because EFP’s initiative does not include funding provisions, it is an
unfunded mandate and is void. Further, EFP’s description of effect
rendered the initiative void because it was misleading about the impact the
proposed change would have on the state’s budget. Lastly, the initiative
would impair the Legislature’s inherent deliberative function because it
directs the Legislature to enact statutes to effect its goal rather than
proposing those laws itself. Accordingly, the initiative is void, and we affirm
the district court’s injunction.
PN ck 4
Hardesty
We concur:
Parraguirre
AA, a g , oi
Stiglich
SuPREME Court
OF
NEVADA
18
(0) 19474
HERNDON, J., with whom PICKERING, J., agrees, concurring in part and
dissenting in part:
While I concur with the majority’s conclusion that NRS
295.061(1)’s 15-day requirement to set a hearing on an initiative challenge
is directory, and that the district court properly denied the request to
dismiss the complaint under these circumstances, I write separately
because I would reverse the district court’s order on its merits. First, under
the plain language of Article 19, Section 6 of the Nevada Constitution, its
funding mandate applies only to initiative petitions proposing statutes or
statutory amendments, not to initiatives proposing constitutional
amendments. Second, the description of effect here was statutorily
sufficient in that it explained the initiative’s goal within the 200-word limit
without being misleading. Third, there is no precedent precluding
initiatives from proposing constitutional amendments that direct the
Legislature to enact laws, and respondents did not provide persuasive
argument to support adopting such a precedent. Thus, I respectfully
dissent.
Article 19, Section 6 applies only to initiatives proposing statutory changes
Any evaluation of Article 19, Section 6 must be done by reading
it in harmony with Article 19, Section 2(1). Article 19, Section 2(1) 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). This language establishes the people’s right to engage in three
distinct, initiative-based actions: (1) to propose statutes, (2) to propose
amendments to existing statutes and (3) to propose amendments to our
state constitution. Article 19, Section 6 expresses a restriction on the
SuPREME Court
OF
NEVADA
(0) 147A SRB
initiative process. It “does not permit the proposal of any statute or statutory
amendment which makes an appropriation or otherwise requires the
expenditure of money, unless such statute or amendment also imposes a
sufficient tax, not prohibited by the Constitution, or otherwise
constitutionally provides for raising the necessary revenue.” Nev. Const.
art. 19, § 6 (emphasis added). This court has very clearly held that when a
constitutional provision is unambiguous, the court will apply it according to
the plain language of the provision. Nevadans for Nev. v. Beers, 122 Nev.
930, 942, 142 P.3d 339, 347 (2006). Here, the plain language of Section 6 is
unambiguous and clearly singles out two distinct initiative-based actions
available to the people: proposals for new statutes and proposals for
amendments to existing statutes; while specifically excluding a third
initiative-based action available to the people: proposals to amend the
constitution. The majority broadens Section 6’s application by fashioning a
conflict between Sections 2 and 6 that does not exist. Section 2 outlines the
requirements for all initiative petitions. Thus, its application is
intentionally broad. Section 6 discusses a limitation for initiative petitions
that applies to those proposing statutory changes only. Its application is
therefore very specific. As we have repeatedly recognized, when “a general
statutory provision and a specific one cover the same subject matter, the
specific provision controls.” In re Resort at Summerlin Litig., 122 Nev. 177,
185, 127 P.3d 1076, 1081 (2006). The same interpretive rule applies here.
See Landreth v. Malik, 127 Nev. 175, 180, 251 P.3d 163, 166 (2011)
(“Constitutional interpretation utilizes the same rules and procedures as
statutory interpretation.”). The fact that Section 6 specifically applies only
to initiatives proposing statutory changes does not create a conflict. with the
broader provisions of Section 2.
SUPREME Court
OF
NEVADA
(0) 147A EBRD .
2
Furthermore, the majority ignores another long-standing canon
of statutory interpretation: “expressio unius est exclusio alterius, ‘the
expression of one thing is the exclusion of another.” Poole v. Nev. Auto
Dealership Invs., LLC, 135 Nev. 280, 285, 449 P.3d 479, 483-84 (Ct. App.
2019). By limiting its application to “any statute or statutory amendment,”
Section 6, excludes initiatives proposing constitutional changes. This
reading harmonizes Section 6 with the rest of Article 19, which
distinguishes between petitions proposing statutory changes and those
proposing constitutional changes. ‘See, e.g., Nev. Const. art. 19, § 2(3)
(setting forth the process for an initiative petition that “proposes a statute
or an amendment to a statute”); id. § 2(4) (setting forth the process for an
initiative petition that “proposes an amendment to the Constitution”).
Thus, Article 19, Section 6 is unambiguous and can only be interpreted as
applying to initiatives proposing statutory changes.
Even assuming Section 6 is ambiguous, its history supports
limiting Section 6 to proposals to enact or amend statutes, not proposals to
amend the constitution. See Strickland v. Waymire, 126 Nev. 230, 234, 235
P.3d 605, 608 (2010) (noting that “[t]he goal of constitutional interpretation
is to determine the public understanding of a legal text leading up to and in
the period after its enactment or ratification” (internal quotation marks
omitted)). Section 6 was added to the Nevada Constitution by popular vote
in 1972. The draft amendment originated in the 1969 Nevada Leyislature
as Senate Joint Resolution 1. The first draft was written broadly to apply
to both proposals for constitutional amendments and to proposals to enact
or amend statutes. S.J.R. 1, 55th Leg. (Jan. 20, 1969) (“[t]he provisions of
this article do not apply to any measure which ... makes an appropriation
or by its operation requires the expenditure of money”). After discussion,
SuPREME CourT
OF
NEVADA
(0) 1947A
the draft language was narrowed to read, “[t]his article does not permit the
proposal of any statute or statutory amendment which makes an
appropriation or otherwise requires the expenditure of money unless such
statute or amendment also imposes a sufficient tax, not prohibited by the
Constitution, or otherwise constitutionally provides for raising the
necessary revenue.” S.J.R. 1, 55th Leg. (Jan. 20, 1969) (First Reprint). It
was in this form that what became Section 6 was submitted to and approved
by the voters. And the ballot submitting the addition of Section 6 to the
constitution made expressly clear that this limitation on the people’s
reserved initiative rights only applied to initiatives proposing to enact or
amend statutes, not proposals to amend the constitution. Secretary of
State, Constitutional Amendments to Be Voted on in the State of Nevada at
the General Election, Nov. 7, 1972, Question No. 5, 21. Thus, the 1972
explanation of Article 19, Section 6 on the ballot stated that the new section
would “prohibit an initiative petition proposing any statute which makes an
appropriation or requires an expenditure of money, unless the same
proposal contains a sufficient valid tax to raise the necessary revenue.” Id.(emphasis added).
Given its text and history, I cannot agree with the majority’s
conclusion that this court’s perception of sound public policy allows us to
read Section 6 as applying to all initiatives. Because a state constitution is
meant to be a basic set of laws and principles that set out the framework of
the state’s government, including a funding provision for each specific basic
law and principle within that document would be inappropriate.
Additionally, constitutional provisions generally provide certain rights or
requirements and then rely on the Legislature to adopt iaws to facilitate
those provisions, which may include measures for funding. Thus, the
SuPREME Court
OF
NEVADA
4
(0) 19474 129 Nev. 35, 37, 293
P.3d 874, 876 (2013). Because the description of effect is limited to only 200
words, it “cannot constitutionally be required to delineate every effect that
an initiative will have; to conclude otherwise could obstruct, rather than
facilitate, the people’s right to the initiative process.” Jd. at 38, 293 P.3d at
876.
SuPREME Court
OF
NEVADA
(0) 1947A oS
“In determining whether a ballot initiative proponent has
complied with NRS 295.009, it is not the function of this court to judge the
wisdom of the proposed initiative.” Jd. at 41, 293 P.3d at 878 (internal
quotation marks omitted). By affirming the district court’s decision here,
the majority does just that. The district court and the majority conclude
that the initiative will create a significant impact on the state’s budget if
adopted. In reaching this conclusion, however, they went beyond reviewing
the description of effect to judging the appropriateness of adopting the
initiative as proposed based on a perceived ramification on the state’s
budget. This court has stated that while the description of effect is meant
to prevent voter confusion and promote informed decisions, it does not have
to address every possible ramification. See id. at 37, 293 P.3d at 876.
The description of effect here is legally sufficient. Considering
the 200-word limit, it was straightforward, succinct, and nonargumentative
and addressed the initiative’s goal and how that goal would be achieved.
The description does not have a material omission because it acknowledges
the possible effect on taxes or government services. NRS 295.609 does not
require more. In particular, the description does not have to be perfect or
acknowledge every hypothetical effect. Id. at 42, 293 P.3d at 879 (providing
that “the description of effect does not need to explain ‘hypothetical’ effects
of an initiative’). Additionaliy, to the extent the district court found that
the examples of per pupil funding were inaccurate, it could have amended
the description to reflect the correct figures. NRS 295.061(3).
The description of effect is only intended to assist signatories
with deciding whether to sign the initiative petition. Hduc. Initiative PAC,
129 Nev. at 43, 293 P.3d at 880 (“The utility of the description of effect is
confined to the preliminary phase of the initiative process, when the
SuPREME CourRT
OF
NeEvaDA
(O) 19474 ‘ .
6
proponent seeks to garner enough initial support so that the initiative will
be considered by the Legislature and the voters.”). Once the matter is
placed on the ballot, it is accompanied by a neutral summary, which has no
word limit, drafted by the Secretary of State and arguments for and against
voter approval drafted by two separate, independent committees. NRS
293.250; NRS 293.252. The summary and arguments for and against are
what educate voters on whether to approve or reject the initiative. Thus, I
disagree with the district court’s conclusion that the description of effect is
so misleading that it renders the initiative void.
An initiative can propose a constitutional amendment that requires the
Legislature to adopt laws
Lastly, I disagree with the majority’s conclusion that an
initiative petition proposing a constitutional amendment exceeds the
people’s initiative power if it requires the Legislature to adopt laws to
effectuate that amendment. There is no Nevada precedent precluding such
initiatives. Further, there are numerous examples within our constitution
that require the Legislature to act. See Nev. Const. art. 4, § 26 (requiring
the Legislature to “provide by law, for the election of a Board of County
Commissioners’); Nev. Const. art. 9, § 2 (requiring the Legislature to
“provide by law for an annual tax”); Nev. Const. art. 11, § 2 (requiring the
Legislature to “provide for a uniform system of common schools”); Nev.
Const. art. 12, § 1 (requiring the Legislature to “provide by law for
organizing and disciplining the Militia of this State’). The preclusion of
initiatives that propose similar constitutional amendments that require the
Legislature to act only chills the people’s initiative power.
The underlying initiative is not one that is directing the
Legislature to adopt a resolution, see Am. Fed. of Labor v. Eu, 686 P.2d 609,
627 (Cal. 1984), or apply to the U.S. Congress to attempt to change federal
SuPREME CouRT
OF
NeEvaDA
i
(0) 197A EER
Supreme Court
OF
NEvADA
(0) 1947A 930 P.2d 186, 195-
96 (Okla. 1996). Those types of initiatives are improper because they are
not enacting laws. In contrast, the underlying initiative proposes a state
constitutional amendment. Courts should not prevent the electorate from
considering such an initiative petition merely because the initiative does
not propose specific statutes or statutory amendments. Placing such a
requirement on initiatives creates a slippery slope approach of evaluating
initiatives preelection because it puts the court in a position of determining
what level of specificity is appropriate for an initiative to make it on the
ballot. That is not this court’s role, nor should it be.
Accordingly, I would reverse the district court’s order enjoining
the circulation of the initiative and enjoining the Secretary of State from
placing the initiative on the ballot. Because the initiative is proposing a
constitutional change, it did not need to comply with Article 19, Section 6 of
the Nevada Constitution. Further, the initiative’s description of effect was
statutorily adequate. Lastly, there is no preclusion on initiatives proposing
constitutional amendments that direct the Legislature to enact laws.
k— | J.
Herndon
I concur:
Pickering