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Pest Committee; Tony v. Rlh-Gwf Ross Miller

December 1, 2010

PEST COMMITTEE; TONY BADILLO; JACK LIPSMAN; AL MAURICE; KENNY BLACKMAN; WE THE PEOPLE NEVADA; CITIZENS IN CHARGE, PLAINTIFFS-APPELLANTS,
v.
RLH-GWF ROSS MILLER, IN HIS OFFICIAL OPINION CAPACITY AS SECRETARY OF STATE FOR THE STATE OF NEVADA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Nevada Roger L. Hunt, Chief District Judge, Presiding D.C. No. 2:08-cv-01248

The opinion of the court was delivered by: Alarcon, Circuit Judge:

FOR PUBLICATION

Argued and Submitted November 5, 2010-San Francisco, California

Before: Arthur L. Alarcon, Pamela Ann Rymer, Circuit Judges, and Matthew F. Kennelly, District Judge.*fn1

Opinion by Judge Alarcon

OPINION

This appeal arises from the unsuccessful efforts by a group of organizations and individuals who desire to use Nevada's initiative and referendum process to effectuate changes in Nevada law by placing initiatives on the Nevada ballot. These groups brought suit in federal court, asserting that certain of Nevada's statutory requirements for ballot initiatives and referenda violate federal constitutional rights. The district court granted summary judgment in favor of Defendant Ross Miller, the Secretary of State for the state of Nevada. It determined that Nevada's statutory single-subject, description-of-effect, and pre-election challenge provisions do not impose a severe burden on First Amendment rights, are permissible regulations of the state's electoral process, and are not unconstitutionally vague. We affirm because we conclude that the district court did not err in dismissing Appellants' claims.

I

Both before the district court and on appeal, the parties agree that the relevant facts in this case are undisputed. The salient uncontroverted facts are summarized here.

The Nevada Constitution 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, cl. 1. The Nevada Constitution also authorizes the legislature to "provide by law for procedures to facilitate the operation" of the initiative process. Nev. Const. art. 19, § 5. Statutory provisions set out the procedures for placing initiatives and referenda on the ballot. Nev. Rev. Stat. 295.009-295.061.

Before an initiative or referendum petition can be circulated, a copy of the petition must be filed with the Secretary of State; after circulation, it must be returned to the Secretary of State for signature verification. Nev. Const. art. 19, § 1, cl. 2; § 2, cl. 3. The Nevada Constitution sets time lines to qualify petitions. The time line differs depending on the type of petition. For example, if an initiative petition proposes a statute or a statutory amendment, it must be filed with the Secretary of State "not earlier than January 1 of the year preceding the year in which a regular session of the Legislature is held." Id. § 2, cl. 3. After circulation, it must be filed with the Secretary of State for signature verification "not less than 30 days prior to any regular session of the Legislature." Id. If an initiative petition proposes a constitutional amendment, it may be filed with the Secretary of State "not earlier than September 1 of the year before the year in which the election is to be held." Id. § 2, cl. 4. After circulation, it must be filed with the Secretary of State for verification "not less than 90 days before any regular general election." Id.

The statutory requirements for having an initiative placed on a Nevada ballot require that initiative sponsors gather signatures from registered voters in a number equal to 10% of the votes cast in the last general election. Nev. Rev. Stat. 295.012. In 2005, the Nevada legislature enacted Section 295.009, which sets out single-subject and description-of-effect requirements for initiatives and referenda:

1. Each petition for initiative or referendum must:

(a) Embrace but one subject and matters necessarily connected therewith and pertaining thereto; and

(b) Set forth, in not more than 200 words, a description of the effect of the initiative or referendum if the initiative or referendum is approved by the voters. The description must appear on each signature page of the petition.

2. For the purposes of paragraph (a) of subsection 1, a petition for initiative or referendum embraces but one subject and matters necessarily connected therewith and pertaining thereto, if the parts of the proposed initiative or referendum are functionally related and germane to each other in a way that provides sufficient notice of the general subject of, and of the interests likely to be affected by, the proposed initiative or referendum.

Nev. Rev. Stat. 295.009 (emphases added). A related provision permits pre-election challenges to an initiative or referendum as to whether it satisfies the single-subject and description-of-effect requirements:

1. Except as otherwise provided in subsection 3, whether an initiative or referendum embraces but one subject and matters necessarily connected therewith and pertaining thereto, and the description of the effect of an initiative or referendum required pursuant to NRS 295.009, may be challenged by filing a complaint in the First Judicial District Court not later than 15 days, Saturdays, Sundays and holidays excluded, after a copy of the petition is placed on file with the Secretary of State pursuant to NRS 295.015. All affidavits and documents in support of the challenge must be filed with the complaint. The court shall set the matter for hearing not later than 15 days after the complaint is filed and shall give priority to such a complaint over all criminal proceedings.

Nev. Rev. Stat. 295.061(1) (emphases added); see also Nev. Rev. Stat. 295.061(3) ("If a description of the effect . . . is challenged successfully . . . and such description is amended in compliance with the order of the court, the amended description may not be challenged."). In 2007, the legislature added a provision stating that, if a petition or description of effect is amended after the petition is placed on file with the Secretary of State, "[a]ny signatures that were collected on the original petition before it was amended are not valid." Nev. Rev. Stat. 295.015(2)(b).

The PEST Committee asserts,*fn1 and the Secretary of State

Plaintiff-Appellant the PEST Committee is a Nevada ballot advocacy group organized to pass the Prevent Employers from Seizing Tips ballot initiative ("PEST initiative"). The PEST initiative sought to amend a section of a Nevada statute to prohibit an employer from requiring employees to share their tips with their supervisors. Tony Badillo is the chairman of does not dispute, that 10 of the 15 initiative petitions filed by citizen groups in the 2008 Nevada election cycle were challenged, and not one of the challenged initiatives qualified for the ballot. The PEST Committee and We the People were among the groups that filed ballot initiatives to which private parties brought pre-election challenges pursuant to Section 295.061.1 during the 2008 election cycle.

Rather than defend the lawsuit against it, We the People withdrew its petition, redrafted its description of the effect of the proposed initiative to address the claims made by the challengers, and submitted its petition under a new title. Nonetheless, the opponents brought another challenge to the redrafted petition, again alleging that it contained a misleading description of effect. The parties subsequently reached an agreement on the description-of-effect language. We the People again withdrew its petition and refiled it with the revised description of effect. The district court summarized the subsequent history of We the People's petition:

Following litigation, We the People had less than three months to circulate the petition and gather the required number of signatures before the verification deadline in May. After We the People failed to submit their petition in proper format by the deadline, they sued the Secretary of State, arguing the May deadline violated the Nevada Constitution. The Nevada Supreme Court agreed, invalidated NRS the PEST Committee, and Al Maurice and Jack Lipsman are its other organizers. Kenny Blackman is a former dealer at Wynn Resorts who led an effort to overturn Wynn's policy of requiring its dealers to share their tips with supervisors. Plaintiff-Appellant We the People is a ballot advocacy group that has attempted to place a property tax initiative, similar to California's Proposition 13, on the Nevada ballot. Plaintiff-Appellant Citizens in Charge is a national foundation based in Virginia that works to protect and expand the initiative and referendum process throughout the United States.

295.056(3) as amended in 2007, and ordered the Secretary of State to accept the signatures submitted by the June deadline set in the prior version of the statute. See We the People Nev. ex rel. Angle v. Miller, 192 P.3d 1166 (Nev. 2008). Notwithstanding this decision, opponents again challenged the initiative in court for problems with the affidavits accompanying the signatures. The district court held that the problems with the affidavits invalidated the petition and enjoined the Secretary of State from including the initiative on the ballot. The Nevada Supreme Court affirmed. See We the People Nev. v. Nev. State Educ. Ass'n, No. 52390 (Nev. S. Ct. filed Oct. 21, 2008). Consequently, the Property Tax Reform Initiative for Nevada did not appear on the ballot.

Aug. 13, 2009 Order at 7-8.

The PEST Committee, the Nevada ballot advocacy group organized to pass the Prevent Employers from Seizing Tips ballot initiative ("the PEST Initiative"), filed an initiative with the Secretary of State on January 16, 2008. Opponents of the PEST Committee's initiative sued in state court, alleging the PEST Initiative violated the single-subject and description-of-effect requirements, improperly proposed administrative details, and violated the Nevada Constitution. The challengers also alleged that if the proposed initiative was enacted, it would violate the Equal Protection Clause of the United States Constitution. The PEST Committee removed the action to federal court based on the opponents' federal equal protection claim. After extensive briefing, on July 15, 2008, the United States District Court held that, "because the opponents' federal claim was premised on a wholly uncertain condition - namely, that the PEST Initiative would be passed by the voting public - the issue was not ripe for judicial review." Id. at 8. Holding that it lacked a basis for exercising federal jurisdiction, the district court remanded the case to the state court. Id. (citing Nev. Rest. Ass'n v. Miller, No. 3:08-cv- 00118-BES-VPC (D. Nev. filed July 15, 2008)). On July 28, 2008, the ...


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