Opposition Brief — Angle v. Legislature of Nevada

DEC 15 294

No. 04-542 |_OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

HON. SHARRON E. ANGLE, ET AL.,

Petitioners,

We

THE LEGISLATURE OF THE STATE OF NEVADA, ET AL..

Respondents.

On Petition For Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

BRIEF IN OPPOSITION

WILLIAM L. KEANE

Counsel of Record

SCOTT G. WASSERMAN

LESLIE HAMNER

M. SCOTT MCKENNA

R. RENE YECKLEY

LEGISLATIVE COUNSEL BUREAU

NEVADA STATE LEGISLATURE

401 S. Carson Street

Carson City, NV 89701

(775) 684-6830

Counsel for Respondents The Legislature of the State of

Nevada, The Senate of the State of Nevada, Hon. Lorraine T.

Hunt, The Assembly of the State of Nevada, Hon. Richard D.

Perkins, Jacqueline Sneddon, Diane Keetch, Brenda Erdoes,

and Claire J. Clift

FEELIN LPO SE LEI BR OTR INE TE IASI EGE LEN MELE LEAH ESTEE MELA ALES AES OCLC ALIAS ET

i

QUESTIONS PRESENTED

. Whether this Court should exercise jurisdiction over a

case in which all Petitioners lack standing.

. Whether this Court should exercise jurisdiction over a

case in which not only do all Petitioners lack standing,

but many Petitioners also are subject to the Rooker-

Feldman doctrine for having previously litigated and

unsuccessfully appealed to this Court the Nevada

Supreme Court’s decisions at the core of the instant case.

. Whether this Court should exercise jurisdiction over a

case in which all claims for relief are either moot or not

viable based upon Respondents’ immunity.

. Whether this Court should exercise jurisdiction over a

case to review an unpublished decision which does not

create any split of authority.

. Whether this Court should exercise jurisdiction over a

case in which the Federal District Court and the Court of

Appeals reached the right result, the result is based upon

the Nevada Supreme Court’s interpretation of the Nevada

Constitution and, further, the result is supported by

alternative independent grounds.

li

TABLE OF CONTENTS

QUESTIONS PREBEIGS Giri scitaceninctibicticccnianiatinttaptnstnwesinnees i

TABLE OF CORTE iiccsssssicccsicsunsivsacctiintiniaisaatibiciniaivanate ii

TABLE OF AUT RAGES iii tidsccctenstattehnnnceennitnrcaccen iv

STATEMENT O68 ‘FiGB 6th csccinceksteinndtestvscdiisataintetocsnnanens l

REASONS FOR DENYING THE PETITION..................04.. 5

I. All Petitioners lock GB occcctienitieieninatsnren 6

A. Petitioners may be categorized as Legislator

Petitioners, Voter Petitioners and Taxpayer

PetitiOMens ........cccsccsssecessesorsasorsasasassssscsnssesorancessenasess 7

B. Legislator Petitioners lack standing..................00 7

C. Voter Petitioners lack standing...............ccceeeeeees 11

D. Taxpayer Petitioners lack standing....................0 14

II. The Rooker-Feldman doctrine applies _ to

Legislator Petitioners, but is not necessary to this

III. Petitioners’ claims for declaratory and injunctive

relief ave m0. .incssssscisscnssdosiensebeascaiaadlaansnbendasavieks 15

A. Petitioners’ claims for declaratory relief are

B. Petitioners’ claims for injunctive relief are

C. The exception to mootness for “voluntary

cessation” Gg0e: Will GENIE siccisssspethvtieshttiassicisescisces 17

D. The exception to mootness for “capable of

repetition yet evading review” does not

SUD My ........:cancsassnniiabbunsaaaiides sain Madea atiaalilesaiieniee 20

IV. The Ninth Circuit’s decision below does not

create any split Of SWEROTIRY .....scecccscceiscsacsscossssssscssenseee 21

{

i

:

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ill

A. There is no conflict with the Seventh Circuit

regarding the mootness of claims for

I I rile aslgacnnalinenaamnsienecmnnaadonigncs 22

B. There is no conflict with the First Circuit

regarding the mootness exception for

“capable of repetition yet evading review.” .......... 22

C. There is no conflict with the cases cited by

Petitioners regarding the standing of

Legislators to bring institutional injury

UNA sleet: dais Uk decideicig Ashapidedip Nihil ndnliipoediieSais 23

D. There is no conflict with the First, Fifth,

Eighth and D.C. Circuits regarding standing

for individual voters to bring vote dilution

en ata es ashe a gS tala Nee slipds lananniiienienis 25

E. There is no conflict with the D.C. Circuit’s

current jurisprudence regarding standing.............. 26

V. To alter the result in this case, this Court would

need to revisit and overturn the Nevada Supreme

Court’s interpretation of its own state

aa aaa sie cease atic nialianadlateasennadeeeaidatins 26

VI. Alternative independent grounds — specifically,

immunity — support the result in this case ................. 28

VII. On the merits, Petitioners bring only slightly

altered versions of the same claims which this

Court has already declined to hear in Guinn and

which still do not merit review ...........ccceeeeeteteeeeees 29

al allan hack biniohdabeddamenaadiindeks 30

IV

TABLE OF AUTHORITIES

Cases

Alabama v. Pugh,

A. Pe CPU iiiisisisetelinncisiascihedinsnnicencanhninenaniadeancomanen 28

Angle v. Guinn,

124 S. Ct. 1662 (March 22, 2004) ......... ee 1, 3, 27, 30

Arizona v. Evans,

SE She A ive csi casacchidaiepininitbnliciauivianinicbathtecaatiin 27

Arizonans for-Official English v. Arizona,

ee i Fe CE Diiackcnsdesschicinibinanetanittencaiensiicuyes 13, 15, 28

Ashcroft v. Mattis,

OR Ss EE CEP iicrtenrpicsinticinbsteverniin als canes capa 16, 22

Becker v. Federal Election Comm'n,

Fog mF Ph LS A RRO OnrDneenN Neen 22, 23

Bender v. Williamsport Area Sch. Dist.,

fp kk Be Sg, Se irren men meme Smee Teno 24

Campbell v. Clinton,

EE FF ies Gell Rei imaseariawncshcomecinmniceeannasane 8, 26

Chenoweth v. Clinton,

Rae a Se Be Dikneticcesdernccnernbetarnansenstias 8, 26

City News and Novelty, Inc. v. City of Waukesha,

ee isch cinisda sckcediincianiehisidinninaseiniieianens 17

City of Erie v. PAP’S A.M.,

ee I icin basiderasiainsinctcaneasahentadndiakphsinpiakionnns 17

City of Los Angeles v. Lyons,

Ne ee ieccdindessniiatinbsnisinsavcinouiibiianansascntenekcanasnicen 14

City of Mesquite v. Aladdin's Castle, Inc.,

ARs BE A CUE Misti darn tinesiesocacdsianennniniioensnnibesansaxnessans 17

Coalition for Sensible and Humane Solutions

v. Wamser, 771 F.2d 395 (8th Cir. 1985).......... cc eeeeeeeeeeee 25

reel

Coleman v. Miller,

Ee hice daavak iacaasdadnnsnaveiaedateanstnensbnn passim

Conway v. Searles,

Bs I Fn Ee. He BF Fa issecccsanensssvananissoinnxadainosens 24

Creel v. Freeman,

Fe Fe BM FFD ikashnsicinacdinntsesadesinsviviiapanapixs 25

Crue v. Aiken,

Fe A: BD aisnsasinnessntintineiassiasenrasieninsorie ae

Daughtrey v. Carter,

Ue Ws CE, EPPO iasetecescastsnsenccssndarcsnssizccoes 25

District of Columbia Court of Appeals

i PP, AAI Gils OE CRIS hv vieccccscessnsncccicdsosacecsssoass 14

Dyer v. Blair,

SPO F. BUD. UZBT UD TE, TST) oc cccsesccssssissncnssscsssnssnss 10

Exxon Corp. v. Wisconsin Dep't of Revenue,

Re ka I A IE a capac an hacahcekitncinddnaadiaasoncecapennsapningees 27

Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

Be Fe We Te A, DN sins ens cinticccacsecsscnsnnnsvctrsiiin 15

Friends of the Earth, Inc. v. Laidlaw Envil.

Servs. (TOC) Inc., 528 U.S. 167 (2000)...............ssc00s0e0. 17

Gomez v. Toledo,

A a hssshia inte sindks tans cenaraiarsededinannianccsanavacs 29

Guinn v. Legislature of State of Nevada,

FEW eRe BPR ONY, BMD) wins sscsnsasaccnconsessnssdsncsacasesces passim

Guinn v. Legislature of State of Nevada,

ee le I esha ecksstsa eas irncnsesinnnns passim

Gutierrez v. Pangelinan,

SIO EB FF CE, BO) ncissevascncccsre scssonsssecanenieses 8, 23

Johnson v. Fankell,

RU OE Boies diccdchcindsianencredasaniansanedsnsscaniasais 28

Lewis v. Continental Bank Corp.,

ee Me Ee Reis etancitcnscaces inst dacschanscebsunsenincekanand’s 9,15

vi

Locklear v. North Carolina State Bd. of

Elections, 514 F.2d 1152 (4th Cir. 1975)... 25

Lujan v. Defenders of Wildlife, _

a a iaipcchanielathineirniniainittcatiibalianiiacebae 6,7

Michel v. Anderson,

5 Fe ee tis Gs CUD tiscainctenctosetictnasbedamnonaboness 12, 26

Miller v. Johnson,

ee Se I cisicnsichtenlidciiiccinsbindiacsunbibecelenmtiamueutdion 25

Morales v. Vega,

A Fs Ss FORE Cae Ale SH TO iciniscotscsnsatincagieiscciineines 29

Murphy v. Hunt, :

I UP i eels 15, 21

National Park Hospitality Ass'n v. Department

of Interior, 538 U.S. 803 (2003) .......ccccceeceesteeeeeeees 10, 14

Nesmith v. Sheldon,

Be IEE TUTTI ic sonspsassiseiucnncesersndontsiecukindinsdediunsaiimmeaiiis 28

North Carolina v. Butler,

as A seins cidaeicaninccdadstibsoncatcninspaiaidiasiig dubai 27

O’Connor v. Donaldson,

a I TTT ns ccsisnisincshonceunstebsnenuasnabbonieniiddiumetendiatin 29

Perry v. Del Rio,

FL A ps a | Eee mm Arete > 1]

Preiser v. Newkirk,

RR TARE PUENTE E TE Raiacis cnsciesciinpancabapiinibedunnadacapbastiiindaaicas 15,17

Procunier v. Navarette,

AEE TR, SUP Oe TEIN sc sckintconsoniinatenidepdadsapieubilipnishandepsaubleieteticn 29

Raines v. Byrd,

ee a SE Ie PI Didcncnnccandncachpncidoibiapocbtiastanibasntanbans passim

Rea v. Matteucci,

Re Wee AEN GE, BOT Dt cccccnccnsnsdabiesddbdosnbapsiesttictepadaen 24

Rhodes v. Robinson,

NE ee Ee CE ls BE sectienntntscdinsbeinnncnisininsnnnnties 22

— eee

Vii

Richardson v. Town of Eastover,

Fe Ne Te CN ls NID sicicscccssiceinscniccincccincncciisncoues 24

Schlesinger v. Reservists Comm. to Stop

WF FI, SE Ue. Be IGF wiisneitsncscsstnnssccnseiassacicissniins 14

Skaggs v. Carle,

See cae Pe Wins Melle: BUFF tc sscctnsnsssicsiindenissinnssttieansnas 25, 26

Spencer v. Kemna,

ee WII icinntcinhieaNibdascapadsnanshiciadencapicnossncisagnibeonne 21

Steel Co. v. Citizens for a Better Env't,

es Si I cceictelbsidcincdsscceipninssncinibapethassedssnncserabobias 9

Suitum v. Tahoe Regional Planning Agency,

a a Ie iiiinitndndaiththeiitindbatinleibesnniitiiiinenainasendasne 14

Supreme Court of Virginia v. Consumers Union

of United States, Inc., 446 U.S. 719 (1980) uc 29

Tenney v. Brandhove.

Se Ee IE Biliididinhccicsvsvsitindeinniiteaininahas iiacAsniavuceseidiies 29

United States v. AVX Corp.,

a GN I iii cnctescnicecibiecnenscscsnbocanoine 25

United States v. Concentrated Phosphate Export Ass'n,

393 U.S. 199 (1968)... silelaadaaiaphaceniliniliclatian 17,18

United States v. Munsingwear, Inc.,

SE ils MEI inns cosctsanssensnsaccbssincasadanucsitionanpieninnsinitn 15

United States v. Richardson,

I Os I iis hikes sis sins sctnadnstiadédnenssnaibhccananh 14

United States v. Students Challenging Regulatory

Agency Procedures, 412 U.S. 669 (1973)........:ccccccccseeeees 17

Vote Choice, Inc. v. DiStefano,

Gat Pe eaitichictnncnscinotscastbsonsabencsstnciinseinecnis 25

Weinstein v. Bradford,

ee te: Ie ei schctsnddaiiisnentichsictbissnntsadddiécsbosabadaaencedein 21

Will v. Michigan Dep't of State Police,

re ae ee Shite ioehlceaturiccinicdcaaseithichueainbnndcdibacnnibesasbiads 28

Williams v. Eggleston,

TBA ef 2: RMU erent NUR me mM MRE, 28

Wolff v. McDonnell,

SR 3 | | ene Ronn Om EHR N TERT NR 16, 22

Wood v. Strickland,

RE |: 5) Re me RE ee er pO nH Be REED 29

Constitutional Provisions

Os i teins 28, 29

U.S. Cont. art. IV, § 4 (Guarantee Clause) ............. eee 30

A, SE Sr SRE Oe hei ckcabenneecencnainidcsecialinanomnnabanneaioces 13

Statutes

Oe ae Be Se IE eaten sasasevcaninsicsannbinkeatsatanigesedieniiendn’ 28

BE Te Se, AG A EO Pisiciconsiaccnsicnsticiaaieldass<ahbaipknixocimnes 28

Legislative Measures

SE IE I hiss c isha ni indidipanstacnsancasdidionnuiusaanannanaeumnaetileeds 4

I IE ich hciid snilsiisccheiaaneisininlaies dxutreduagiadadumunbinmalduatinanie passim

BN IIIT TN avidin snsiciletnshacdenphuinsehookenacbiskshananiaansenidhansnssinbeadiaaati A

Other Authorities

Assembly Daily Journal, Twentieth Special Session

2003, The Twenty-Fifth Day, July 19, 2003.0... +

Cox, Don, Candidates come to dinner: Hopefuls

discuss issues at tables of local residents, Reno

Gazette-Journal, October 27, 2004 ...............cccccceeeeseeeeeees 20

Economic Forum, State of Nevada, Forecast of

Future State Revenues, December 1, 2004 ...................... 19

1X

Neff, Erin, ‘$/ million race’ begins in earnest, Las

Vegas Review-Journal, April 28, 2004.........0....ccceeeee

Ryan, Cy, Rainy day fund gets boost from economy,

Las Vegas Sun, December 7, 2006 ..........0.ccccccscscsccccscessee

Thevenot, Carri Geer, SUPREME COURT:

Challenger holds lead on justice: Poll shows

Guinn appointee slightly trailing Las Vegas

attorney, Las Vegas Review-Journal, October 22,

l

STATEMENT OF THE CASE

At its core, the instant case is an attempt to relitigate in

federal court the Nevada Supreme Court’s decisions in

another case — Guinn v. Legislature of the State of Nevada

— a case to which many of the Petitioners in the instant case

were parties, and regarding which they exhausted all

available challenges and appeals without success. Guinn v.

Legislature, 71 P.3d 1269 (Nev. 2003) (“Guinn I’), reh’g

denied and opinion clarified, 76 P.3d 22 (Nev. 2003) (“Guinn

IT’), cert. denied sub. nom., Angle v. Guinn, 124 S. Ct. 1662

(March 22, 2004). In Guinn I, the Nevada Supreme Court

issued an order and writ of mandamus (“Guinn Order”)

directing the Nevada Legislature to enact revenue-raising

bills upon simple majority votes rather than two-thirds votes

during a specified and limited period of time. Pet. App. 3a,

9a; Guinn I, 71 P.3d at 1276; Guinn II, 76 P.3d at 24.

Respondents’ proceeded to obey the Guinn Order as the

Guinn Order required them to do. Petitioners then brought

the instant action against Respondents based upon

Respondents’ actions in preparation for enacting legislation

pursuant to the Guinn Order as well as Respondents’ alleged

intent to actually enact legislation pursuant to the Guinn

Order. Pet. App. 9a. Petitioners have maintained this case

through the Ninth Circuit Court of Appeals (“Ninth Circuit”)

and to this Court despite the fact that the Guinn Order was

litigated and appealed to the fullest extent possible in the

Guinn litigation and, pursuant to that litigation, the Guinn

Order was never found by any court to be invalid or incorrect

in any way. Angle, 124 S. Ct. at 1662-63; Guinn II, 76 P.3d

at 33. Petitioners also have maintained this case despite the

fact that, soon after the decision of the United States District

Court for the District of Nevada (“District Court”), the Guinn

' For the purposes of the instant brief, “Respondents” includes only those

Respondents on whose behalf this brief is filed, specifically, the Nevada

Legislature and the other Respondents who are entities, officers or

employees of the Nevada Legislature.

2

Order expired without any legislation actually being enacted

by simple majority votes. Pet. App. 3a; Guinn II, 76 P.3d at

34 (Maupin, J., dissenting). These facts are explained below.

In June of 2003, Nevada Governor Kenny Guinn

(“Governor Guinn’) called the Nevada Legislature to its 20th

Special Session, the primary purpose of which was to enact a

bill to increase taxes so that the budget of the State would be

fully funded as required by the Nevada Constitution. Guinn

I, 71 P.3d at 1273. On July 1, 2003, as the Nevada

Legislature’s 20th Special Session continued, Governor

Guinn commenced the Guinn case by requesting, in part, that

the Nevada Supreme Court issue a writ of mandamus

ordering the Nevada Legislature to raise revenue for

education by a date certain. Pet. App. 8a; Guinn J, 71 P.3d at

1272. The Nevada Legislature responded with a brief

arguing both against the issuance of the writ and in favor of

interpreting the legislative voting requirements in the Nevada

Constitution to require two-thirds votes to enact revenue-

raising bills. Guinn II, 76 P.3d at 28. However, neither of

these arguments of the Nevada Legislature prevailed. On

July 10, 2003, based upon the facts and circumstances

present during the 20th Special Session, the Nevada Supreme

Court issued its Guinn J opinion and order, which interpreted

the legislative voting requirements in the Nevada

Constitution to require — solely for the duration of the 20th

Special Session — simple majority votes to enact revenue-

raising bills. Pet. App. 8a-9a; Guinn I, 71 P.3d at 1274-76;

Guinn II, 76 P.3d at 24-25. Then, also pursuant to its Guinn |

opinion and order, the Nevada Supreme Court issued a writ

of mandamus ordering the Nevada Legislature to proceed

with the 20th Special Session using simple majority votes to

enact revenue-raising bills. Pet. App. 8a-9a; Guinn I, 71 P.3d

at 1276; Guinn II, 76 P.3d at 24.

The period during which the Nevada Supreme Court’s

Guinn Order directed the actions of the Nevada Legislature

expired by the terms of the Guinn Order itself as of the end of

3

the 20th Special Session of the Nevada Legislature —

specifically, on July 22, 2003. Pet. App. 2a, 9a; Guinn II, 76

P.3d at 25, 33. However, a number of the Petitioners in the

instant case continued to challenge and appeal the Guinn

Order. They first filed a petition for rehearing at the Nevada

Supreme Court. Guinn II, 76 P.3d at 25. When the petition

for rehearing failed (Guinn IJ, 76 P.3d at 33), they then

appealed the Guinn Order to this Court through a petition for

a writ of certiorari, which this Court denied. Angle, 124 S.

Ct. at 1662-63.

Ironically, despite the Guinn Order, no revenue-raising

bills were actually enacted with less than a two-thirds vote in

each house of the Nevada Legislature because the only

revenue-raising bill that was enacted, Senate Bill 8, received

a two-thirds vote in each house.” Pet. App. 2a, 4a; Guinn II,

76 P.3d at 33. Senate Bill 8, enacted on July 21, 2003,

appropriated money to fund education and increased taxes to

balance the budget. Guinn II, 76 P.3d at 33. This brought

the 20th Special Session to an end and, thereby, caused the

Guinn Order to expire by its own terms.’ Pet. App. 3a;

Guinn IT, 76 P.3d at 25, 33.

While the Guinn Order was in effect, it changed the result

on only one vote in one house of the Nevada Legislature. On

July 13, 2003, three days after the Guinn Order was issued,

the Nevada Assembly voted upon an amended version of

Senate Bill 6, a revenue-raising bill which would have

required a two-thirds vote for passage in the absence of the

Guinn Order.’ Pet. App. 9a. As required by the Guinn

Order, the Nevada Assembly and its officers and employees

? The history of Senate Bill 8 is available at http://www.leg.state.nv.us/

20thSpecial/Reports/history.cfm?ID=1258.

* Both houses of the Nevada Legislature adjourned sine die within

minutes of 1:30 a.m. on July 22, 2003, less than 3 hours after Senate Bill

8 received final approval by two-thirds votes in both houses.

* The history of Senate Bill 6 is available at http://www.leg.state.nv.us/

20thSpecial/Reports/history.cfm?ID=1235.

4

considered Senate Bill 6 to be passed from the Nevada

Assembly upon the simple majority vote that occurred on that

day. /d. However, although the Guinn Order would have

required Senate Bill 6 to be considered enacted if the Nevada

Senate had thereafter approved the Assembly version of

Senate Bill 6 by a simple majority vote, such approval from

the Nevada Senate never occurred. Pet. App. 4a. Instead,

Senate Bill 6 ended up in conference committee, where it

died on July 22, 2003, when the 20th Special Session ended.”

Petitioners incorrectly assert that the Guinn Order also

affected the result of the vote on Senate Bill 5, an amended

version of which was passed by the Nevada Assembly by a

simple majority vote on July 20, 2003 (two days before the

Guinn Order expired).° Pet. 10. Petitioners contend that

Senate Bill 5 would have required a two-thirds vote for

passage if not for the Guinn Order. Id. However, as opined

by Legislative Counsel Brenda Erdoes on the floor of the

Nevada Assembly before the vote on Senate Bill 5, the bill

did not raise revenue, and therefore did not require a two-

thirds vote, without regard to the Guinn Order.’ Ms. Erdoes’

legal opinion, which she provided as part of her official

duties as legal counsel to the Nevada Legislature, and which

was an interpretation of Nevada law separate from the

Nevada Supreme Court’s decisions in the Guinn litigation,

has never been disputed by any court. In any case, Senate

Bill 5 was never enacted. It was sent to the Nevada Senate

for approval, but no further action was taken on the bill so it

died in the Nevada Senate on July 22, 2003, when the 20th

Special Session ended.*

* See supra notes 3 and 4.

° The history of Senate Bill 5 is available at http://www.leg.state.nv.us/

20thSpecial/Reports/history.cfm?ID=1232.

” Ms. Erdoes opined in response to a question from Assemblyman Beers.

Assembly Daily Journal, Twentieth Special Session 2003, The Twenty-

Fifth Day, July 19, 2003, available at http://www.leg.state.nv.us/

20thSpecial/Journal/Assembly/Final/aj025.html.

® See supra notes 3 and 6.

5

On July 14, 2003, Petitioners commenced the instant case

in the District Court — the day after Senate Bill 6 was passed

by the Nevada Assembly upon a simple majority vote (July

13, 2003), and eight days before the 20th Special Session

ended (July 22, 2003). Pet. App. 9a. Petitioners brought the

instant case secking declaratory and injunctive relief and

nominal damages relating to Respondents’ obedience to the

Guinn Order. Id. The District Court found that the Rooker-

Feldman doctrine prevented the District Court from having -

subject matter jurisdiction over the claims of the Petitioners

who were also parties in the Guinn litigation, because the

instant case “constitute[d] a direct attack on the [Guinn]

decision of the Nevada Supreme Court.” Jd. at 12a-13a. For

all Petitioners remaining after the application of the Rooker-

Feldman doctrine, the District Court dismissed the case based

upon Petitioners’ failing to state a claim upon which relief

could be granted, given that Respondents were simply

following Nevada law as mandated by the Nevada Supreme

Court. Jd. at 13a-14a. The District Court dismissed the

instant case on July 18, 2003. /d. at 7a, 14a.

Before the Ninth Circuit could hear Petitioners’ appeal of

the instant case, the Nevada Legislature enacted Senate Bill 8

with two-thirds votes in both houses, thereby bringing the

20th Special Session to an end. /d. at 2a. With the end of the

20th Special Session, the Guinn Order expired and Senate

Bill 6 died. Jd. at 3a-4a. The Ninth Circuit found that

Petitioners lacked standing to bring their claim for nominal

damages and that Petitioners’ claims for declaratory and

injunctive relief were moot. /d. at 3a, 5a.

REASONS FOR DENYING THE PETITION

Petitioners face insurmountable jurisdictional problems,

the foremost being that all Petitioners lack standing because

all fail the threshold “case or controversy” requirement

necessary for standing. Additionally, certain Petitioners and

certain claims also fail at the jurisdictional stage based upon

6

the Rooker-Feldman doctrine and, given the events since

Petitioners filed the instant case, mootness.

Even if the aforementioned jurisdictional problems did

not exist, further features of this case make it an undesirable

case for this Court to review. First, the decision below of the

Ninth Circuit is an unpublished decision, and even if the

decision below had precedential value, it would not create

any split of authority. Second, to change the result in this

case, this Court would need to depart from its longstanding

policy of avoiding the revisiting and overturning of state

supreme courts’ interpretations of their own state

constitutions. Third, there are alternative independent

grounds supporting the result in this case — specifically,

various forms of immunity applicable to Respondents —

which were not reached by the lower courts because of the

many threshold problems presented by this case but which

nonetheless show that the decisions below reached the right

result. Finally, even if we assume, arguendo, that the

foregoing jurisdictional and other problems did not exist, on

the merits, Petitioners have simply brought slightly altered

versions of the same claims which this Court declined to hear

when certiorari was sought in the Guinn case and which still

do not merit review.

I. _ All Petitioners lack standing.

The party invoking federal jurisdiction bears the burden

of establishing standing. Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992). In Lujan, this Court identified three

criteria that Petitioners must satisfy to establish standing. /d.

at 560. Two of these criteria are most relevant to the instant

case. First, “the plaintiff must have suffered an injury in fact

— an invasion of a legally protected interest which is (a)

concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical.” /d. (citations, footnotes and

quotations omitted). Second, “it must be ‘likely,’ as opposed

to merely ‘speculative,’ that the injury will be ‘redressed by a

7

favorable decision.”” Jd. at 561. In the instant case, all

Petitioners have failed to satisfy these criteria.”

A. Petitioners may be categorized as Legislator

Petitioners, Voter Petitioners and Taxpayer

Petitioners.

The entire group of Petitioners can be divided into three

categories such that every petitioner falls into at least one

category. First, the category of “Legislator Petitioners” .

includes those Petitioners who are Legislators. Pet. 8; Pet.

App. 9a. They assert claims based upon nullification or

dilution of their votes as Legislators. Pet. 8; Pet. App. 9a.

Second, the category of “Voter Petitioners” includes those

Petitioners who assert claims related to voting. Pet. 8; Pet.

App. 9a. Third, the category of “Taxpayer Petitioners”

includes those Petitioners who assert claims related to the

possibility of paying Nevada taxes enacted with less than a

two-thirds vote in each house of the Nevada Legislature. Pet.

App. 9a.

B. Legislator Petitioners lack standing.

Legislator Petitioners contend that their votes as

Legislators were diluted because the Guinn Order required

revenue-raising bills during the 20th Special Session to be

considered passed on simple majority votes‘ rather than two-

thirds votes. Pet. 8, 22. However, the Guinn Order applied

to all members of both houses equally. Thus, Legislator

Petitioners’ claim is a claim of an institutional injury.'°

* The remaining criterion is that “there must be a causal connection

between the injury and the conduct complained of — the injury has to be

‘fairly . . . trace[able] to the challenged action of the defendant, and not

. .. th[e] result [of] the independent action of some third party not before

the court.”” Lujan, 504 U.S. at 560 (alteration in original). Petitioners may

even fail here, as the Nevada Supreme Court, not Respondents, caused the

alleged injuries. Cf Raines v. Byrd, 521 U.S. 811, 830 n.11 (1997).

' Raines, 521 U.S. at 821 (“[A]ppellees have not been singled out for

specially unfavorable treatment as opposed to other Members of their

ee

8

Because they are claiming an_ institutional injury,

Legislator Petitioners’ standing is governed by this Court’s

precedents in Raines v. Byrd, 521 U.S. 811 (1997) and

Coleman v. Miller, 307 U.S. 433 (1939). Raines, 521 U.S. at

821. In Coleman, 20 of 40 Kansas Senators were found to

have standing to assert an institutional injury based upon the

Kansas Legislature’s enactment of a resolution over the 20

Senators’ “no” votes. Coleman, 307 U.S. at 438. The

resolution was enacted by the Kansas Legislature when the

Lieutenant Governor, as presiding officer of the Senate, cast

the tie-breaking vote to override the “no” votes of the 20

Senators, and then the lower house of the Kansas Legislature

also voted to approve the resolution. /d. at 436. As stated by

this Court in Raines:

It is obvious, then, that our holding in Cu/2man

stands (at most . . . ) for the proposition thai

legislators whose votes would have been sufficient to

defeat (or enact) a specific legislative Act have

standing to sue if that legislative action goes into

effect (or does not go into effect), on the ground that

their votes have been completely nullified.

Raines, 521 U.S. at 823 (emphasis added and footnotes

omitted). Thus, the 20 Senators had standing because if they

succeeded in their claim that the Lieutenant Governor should

not have been able to vote, then the effectiveness of the

legislative action would have been reversed.'' Their

cognizable injury in fact was that the bill went into effect

over their “no” votes, and the redress available from a

respective bodies. Their claim is that the Act causes a type of

institutional injury (the diminution of legislative power), which

necessarily damages all Members of Congress and both Houses of

Congress equally.”’).

'' See also Gutierrez v. Pangelinan, 276 F.3d 539, 545-46 (9th Cir. 2002):

Campbell v. Clinton, 203 F.3d 19, 29, 31 (D.C. Cir. 2000) (Randolph, J.,

concurring); Chenoweth v. Clinton, 181 F.3d 112, 116 (D.C. Cir. 1999).

9

favorable decision was to cause the resolution not to be

effective.”

Application of Coleman, as clarified by Raines, to the

facts of the instant case shows that Legislator Petitioners do

not have standing to bring their institutional injury claim.

First, no legislation went into effect over the “no” votes of

one-third of the members of either house of the Nevada

Legislature. Guinn II, 76 P.3d at 34 (Maupin, J., dissenting).

Hence, there is no cognizable injury. Second, because no

legislation went into effect, there is no legislation for this

Court to cause not to be effective if Legislator Petitioners

receive a favorable decision. Hence, there is no redress

available.'? If a revenue-raising bill had gone into effect

despite the requisite number of Legislator Petitioners’ “no”

votes, then the Legislator Petitioners would have had

standing to assert their institutional injury pursuant to Raines

and Coleman. But that simply did not happen.'*

"? Petitioners assert that there was no injury for this Court to redress in

Coleman because the resolution at issue was a resolution in which the

Kansas Legislature ratified a proposed amendment to the United States

Constitution, and the constitutional amendment never ultimately garnered

enough state ratifications to become effective. Pet. 25. However,

Petitioners misread Coleman. When this Court decided Coleman, this

Court noted that the ratification of the proposed amendment by an

adequate number of states was an ongoing possibility. Coleman, 307

U.S. at 452. Thus, the Kansas Legislature’s ratification had a live and

ongoing significance, and the rea! and significant remedy this Court could

offer the Senators was to cause Kansas’s ratification not to be effective.

'? Respondents note that psychic satisfaction and payment for attorney’s

fees accrued in maintaining the instant case are inadequate forms of

redress to support standing. Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 107 (1998) (“[P]sychic satisfaction is not an acceptable Article

III remedy because it does not redress a cognizable Article III injury.”);

Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990) (“{An]

interest in attorney’s fees is, of course, insufficient to create an Article III

case or controversy where none exists on the merits of the underlying

claim.”’).

'* Legislator Petitioners urge this Court to break from its established

jurisprudence regarding institutional injuries to address controversies

10

The stumbling block for Legislator Petitioners is that,

when the instant case was brought in District Court, their

claim was not yet ripe because Senate Bill 6 was still mired at

an intermediate stage in the legislative process (and then their

claim never did ripen because Senate Bill 6 ultimately died in

that legislative process).'° When this case was brought, it

concerning legislation at intermediate steps in the legislative process. Pet.

25. In support of their position, Petitioners argue that the Kansas

Legislature’s resolution in Coleman, which finalized Kansas’s ratification

of the amendment to the United States Constitution, was simply one step

toward ultimate approval of the amendment. Pet. 25. Petitioners

analogize the constitutional amendment ratification process in Coleman to

the Nevada Legislature’s process in enacting bills through passage in two

separate houses. /d. However, this analogy fails because the Kansas

Legislature’s resolution was a completed legislative act of the Kansas

Legislature while Senate Bill 6 was not a completed act of the Nevada

Legislature. Legislative resolutions sometimes do nothing more than

state a legislature’s official position, with perhaps little or no effect upon

the law of the land, but they are still completed legislative acts.

Petitioners’ analogy would be more appropriate if, instead of challenging

Senate Bill 6, they were challenging a one-house resolution adopted by

the Nevada Assembly which expressed the position of the Nevada

Assembly in an official and final manner. But those are not the facts of

this case.

'S As stated by now-Justice Stevens: “As federal judges we are satisfied

that we may not participate in preliminary stages of a State’s legislative

process.” Dyer v. Blair, 390 F. Supp. 1287, 1289 (N.D. Ill. 1974)

(finding unripe a challenge to the defeat of a resolution by the Illinois

House of Representatives because of the House’s enforcement of an

allegedly unconstitutional requirement of a three-fifths vote for passage,

with the court finding a lack of ripeness because the Illinois Senate had

not yet acted (and ultimately did not act) on the resolution). Cf National

Park Hospitality Ass'n v. Department of Interior, 538 U.S. 803, 807-08

(2003) (“Ripeness is a justiciability doctrine designed to prevent the

courts, through avoidance of premature adjudication, from entangling

themselves in abstract disagreements over administrative policies, and

also to protect the agencies from judicial interference until an

administrative decision has been formalized and its effects felt in a

concrete way by the challenging parties.”) (emphasis added and

quotations and citations omitted). The District Court recognized the

11

was still possible that Senate Bill 6 could have been approved

by both houses of the Nevada Legislature on two-thirds

votes. For example, if the conference committee had not let

Senate Bill 6 die, but instead had returned the bill with a

compromise position reconciling the competing Assembly

and Senate versions of the bill, then another vote by each

house would have been necessary before the bill could have

been enacted. At that point, each house might have approved

the compromise bill by a two-thirds vote. This is just one of

many possibilities as to how the Nevada Assembly might

have had another opportunity to obtain a two-thirds vote on

Senate Bill 6. Further, when this case was brought, it was

reasonable to believe that Senate Bill 6 might not go into

effect — as shown by the fact that it never did. The point of

these observations is that, until a legislative process is

complete, it is impossible to know what its results will be.'°

So disagreements (such as the one in the instant case)

regarding incompletely-processed legislative acts are

necessarily abstract, hypothetical and based upon conjecture.

They simply are not ripe — and in the instant case,

Petitioners’ claims never did ripen.

C. Voter Petitioners lack standing.

Voter Petitioners raise two distinct claims. First, Voter

Petitioners . proffer the derivative claim that the alleged

institutional injury suffered by Legislator Petitioners is also

an injury to Voter Petitioners. Pet. 26. With regard to this

alleged institutional injury, if Legislator Petitioners have no

cognizable injury in fact which can be redressed by a

favorable decision, then neither do Voter Petitioners.

As discussed in Part 1.B., supra, pursuant to the precedent

of this Court in Raines and Coleman, as applied to the facts

ripeness issue, but disposed of the case otherwise. Pet. App. 14a (“[W]c

need not address the substantial issues of immunity and ripeness.”).

'© Perry v. Del Rio, 66 S.W.3d 239, 255 (Tex. 2001) (“[P]redictions

about the probable course of the legislative process are notoriously

unreliable, as anyone remotely familiar with the process well knows.”).

12

of the instant case, Legislator Petitioners could not establish a

cognizable injury in fact regarding their claim of an

institutional injury, and, in any case, a favorable decision

could not redress Legislator Petitioners’ alleged institutional

injury. As also discussed in Part I.B., supra, Legislator

Petitioners’ claim was not ripe when brought, and never

ripened. Because Voter Petitioners’ first claim is simply

derivative of Legislator Petitioners’ claim, the same

infirmities cause Voter Petitioners not to have standing to

bring their first claim.

Before turning to Voter Petitioners’ second claim,

Respondents note that even if Legislator Petitioners could

establish a cognizable injury in fact regarding an institutional

injury which could be redressed by a favorable decision, it

does not necessarily follow that Voter Petitioners have

standing to bring their derivative claim. The Guinn Order

applied to all Legislators equally and so affected equally the

representation provided to all Nevadans. The Guinn Order

did not provide that the representation provided to any

specific and identifiable Nevadan would be reduced as

compared to any other Nevadan. Thus, even if Legislator

Petitioners had a viable claim of an institutional injury

(which they do not), Voter Petitioners would still need

to show that all Nevadans (because Voter Petitioners are

not distinguishable) have standing to bring suit on an

alleged institutional injury suffered by all Nevada

Legislators equally.'’ In fact, there is authority to suggest the

'7 Although Petitioners cite the D.C. Circuit’s decision in Michel v.

Anderson, 14 F.3d 623 (D.C. Cir. 1994), Michel does not address this

circumstance even if we assume, arguendo, that the Michel Court’s

reasoning still has validity on this point. See Part IV.E., infra (discussing

the fact that Michel does not represent the D.C. Circuit’s current

jurisprudence). In Michel, unlike the instant case, the D.C. Circuit was

addressing a circumstance in which specific and identifiable constituents

(i.e., constituents of representatives from states such as Illinois) were

having their representatives’ voting power reduced so as to increase the

voting power of the delegates of other specific and identifiable

13

opposite — that such general claims of improper conduct by

the government, without particularized injury to the Voter

Petitioners, are insufficient to sustain standing. '*

Voter Petitioners’ second claim is that their votes for the

Gibbons Initiative, which was the ballot question by which

the two-thirds vote requirement for revenue-raising bills was

added to the Nevada Constitution, were diluted by the Guinn

Order. Pet. 5 n.1, 8, 27. Significantly, Voter Petitioners do

not claim any problem with the two elections, in 1994 and -

1996, in which the Gibbons Initiative was approved as an

amendment to the Nevada Constitution.'? Instead, Voter

Petitioners’ claim is that they do not agree with the manner in

which the two-thirds vote requirement has been interpreted

by the Nevada Supreme Court in the Guinn decisions.

Respondents observe that once the two-thirds vote

requirement became part of the Nevada Constitution, it

became the law for all Nevadans, not only those who voted

for it. Thus, Voter Petitioners’ claim is the same as the claim

that could be brought by any Nevadan — specifically, the

allegation that entities, officers and employees of the State

Government are not following the Nevada Constitution as the

claimants believe it should be followed. However, a general

claim that the government is not following the law, absent

some particularized injury to the claimant, does not give the

claimant a cognizable injury in fact sufficient to establish

standing.” Therefore, Voter Petitioners fail to establish

standing for their second claim.

constituents (i.e., constituents of delegates from non-state jurisdictions

such as Puerto Rico). Michel, 14 F.3d at 626.

"8 See infra note 20.

' The Nevada Constitution requires that amendments to the Nevada

Constitution via initiatives be approved twice. Nev. Const. art. 19, § 2.

*® Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997) (“To

qualify as a party with standing to litigate, a person must show, first and

foremost, an invasion of a legally protected interest that is concrete and

particularized and actual or imminent. An interest shared generally with

the public at large in the proper application of the Constitution and laws

Ak ray te eA ge ”

14

D. Taxpayer Petitioners lack standing.

Taxpayer Petitioners participated in the instant case to

enjoin the operation of the Guinn Order so as to prevent the

possibility that Taxpayer Petitioners might be required to pay

a tax enacted without a two-thirds vote in each house of the

Nevada Legislature. Pet. 9a. However, no tax was enacted

without a two-thirds vote in each house of the Nevada

Legislature, either at the time the instant case was filed or

thereafter. Pet. App. 2a-4a; Guinn II, 76 P.3d at 34 (Maupin,

J., dissenting). Given these facts, Taxpayer Petitioners’

claims were not ripe when the instant case was filed, and

never became ripe.” In short, Taxpayer Petitioners never

suffered a cognizable injury in fact, and there never was

anything for a favorable decision to redress.

II. The Rooker-Feldman doctrine applies to Legislator

Petitioners, but is not necessary to this case.

All Legislator Petitioners were parties to the Guinn case

at the Nevada Supreme Court. Pet. App. 12a. In the Guinn

litigation, Legislator Petitioners attacked the Nevada

Supreme Court’s Guinn Order directly. In the instant case,

Petitioners, including Legislative Petitioners, attack the

Guinn Order indirectly by attacking Respondents for obeying

the Guinn Order. Thus, as the District Court observed,

Petitioners in the instant case were, in essence, requesting

that the District Court review and overturn the Nevada

Supreme Court’s decision in Guinn I. Pet. App. 12a.

Therefore, pursuant to this Court’s precedent in District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482

(1983), the District Court recognized that it did not have

will not do.”) (quotations and citations omitted); City of Los Angeles v.

Lyons, 461 U.S. 95, 111 (1983); Schlesinger v. Reservists Comm. to Stop

the War, 418 U.S. 208, 220 (1974); United States v. Richardson, 418 U.S.

166, 175 (1974).

*! Cf, National Park Hospitality Ass'n, 538 U.S. at 807-08; Suitum v.

Tahoe Regional Planning Agency, 520 U.S. 725, 736 n.10 (1997).

15

Subject matter jurisdiction over the Legislator Petitioners’

claims. Pet. App. 12a.

However, the Rooker-Feldman doctrine is not necessary

to the result of the instant case. All Petitioners lack standing,

in addition to the other infirmities of this case raised by

Respondents in the remainder of the instant brief. The

Rooker-Feldman doctrine does nothing more than present

just one more reason why Legislator Petitioners’ claims .

should fail at the jurisdictional level of inquiry. Thus, there

is no need for this Court, as proposed by Petitioners (Pet. 10

n.4), to hold this Petition until this Court resolves Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 364 F.3d 102 (3rd

Cir. 2004), cert. granted 2004 WL 2058940 (U.S. Oct. 12,

2004) (No. 03-1696).

III. Petitioners’ claims for declaratory and injunctive

relief are moot.

A. Petitioners’ claims for declaratory relief are

moot.

Petitioners sought declaratory judgments that the Nevada

Assembly’s treatment of Senate Bill 6 as passed on a simple

majority vote violated the Nevada Constitution and diluted

their votes. Pet. App. 9a. However, when a party’s requested

relief can no longer affect the rights of the parties to the case,

or the issues in the case are otherwise no longer live, then the

claim for declaratory relief is moot.22 As correctly noted by

the Ninth Circuit below, Petitioners’ claims for declaratory

? Lewis, 494 U.S. at 477 (“Article III denies federal courts the power to

decide questions that cannot affect the rights of litigants in the case before

them, and confines them to resolving real and substantial controvers[ies]

admitting of specific relief through a decree of a conclusive character, as

distinguished from an opinion advising what the law would be upon a

hypothetical state of facts.”) (quotations and citations omitted). See also

Arizonans for Official English, 520 U.S. at 48; Murphy v. Hunt, 455 U.S.

478, 481-82 (1982); Preiser v. Newkirk, 422 U.S. 395, 401-02 (1975);

United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950).

16

relief are moot because Senate Bill 6 died without being

enacted. Pet. App. 2a-3a. Senate Bill 6 will be treated in

exactly the same manner without regard to any decision in

the instant case — specifically, it will be treated as a bill

which was not enacted. Therefore, Petitioners’ claims for

declaratory relief are moot.

Before leaving this point, Respondents note that, under

certain circumstances, a claim for declaratory relief can

survive mootness if it is needed as a predicate for monetary -

relief.7> In the instant case, Petitioners did seek nominal

damages. Pet. 8. However, as the Ninth Circuit correctly

noted below, Petitioners lacked standing to bring their claims

for damages. Pet. App. 5a. See also Parts I.B., LC. and I.D.,

supra. Further, even if Petitioners had standing, Petitioners’

claims for damages should fail based upon Respondents’

immunity. See infra Part VI. When a claim for damages that

was initially brought in a case is not viable, or at some point

loses viability, then that claim for damages cannot save from

mootness a related claim for declaratory relief that is

otherwise moot.”*

B. Petitioners’ claims for injunctive relief are moot.

Petitioners sought to enjoin Respondents from

considering Senate Bill 6 or any other revenue-raising bills to

be passed or enacted with less than a two-thirds vote in each

house of the Nevada Legislature. However, when the issues

in a case are no longer live, then a claim for injunctive relief

in that case is moot.2 As correctly noted by the Ninth

Circuit below, Petitioners’ claims for injunctive relief are

moot. Pet. App. 3a. The claims are moot, quite simply,

because Senate Bill 6 died and the Guinn Order expired

without any revenue-raising bill being enacted with less than

” Wolff v. McDonnell, 418 U.S. 539, 555 (1974).

- Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (finding claim for

declaratory relief moot after claim for damages eliminated).

*S See supra note 22.

‘ 17

a two-thirds vote in each house. Further, now that the Guinn

Order has expired, Respondents have no duty or authority,

and have not even claimed any duty or authority, to treat

revenue-raising bills as passed or enacted with less than a

two-thirds vote. Therefore, Petitioners’ claims for injunctive

relief are moot.

C. The exception to mootness for “voluntary

cessation” does not apply.

As the Ninth Circuit correctly held, the voluntary

cessation exception to mootness does not apply to the instant

case. Pet. App. 3a. The voluntary cessation exception exists

to ensure “that a party should not be able to evade judicial

review, or to defeat a judgment, by temporarily altering

questionable behavior.””° Without this exception, “the courts

would be compelled to leave ‘[t]he defendant . . . free to

return to his old ways.’”?’ When determining whether a case

is rendered moot by “a defendant’s voluntary conduct,” this

Court applies the following standard: “‘A case might

become moot if subsequent events made it absolutely clear

that the allegedly wrongful behavior could not reasonably be

expected to recur.’””*° In determining what is needed to

establish such a reasonable expectation, this Court has

explained that “‘pleadings must be something more than an

ingenious academic exercise in the conceivable.’””

”° City News and Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1

(2001).

*” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S.

167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455

U.S. 283, 289 n.10 (1982)).

* Friends of the Earth, 528 U.S. at 189 (emphasis added) (quoting United

States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203

(1968)).

”? Preiser, 422 U.S. at 403 (quoting United States v. Students Challenging

Regulatory Agency Procedures, 412 U.S. 669, 688-89 (1973)). See also

City of Erie v. PAP’S A.M, 529 US. 277, 303 (2000) (Scalia, J.,

concurring) (“The test for mootness we have applied in voluntary-

termination cases is not whether the action originally giving rise to the

18

In the instant case, Respondents did not voluntarily

decide that they would consider revenue-raising bills to be

passed and enacted on simple majority votes. That decision

was made by the Nevada Supreme Court by the terms of its

Guinn Order, the issuance of which the Nevada Legislature

fought against. Respondents also did not voluntarily decide

that they would cease to consider revenue-raising bills to be

passed and enacted on simple majority votes. That decision,

too, was made by the Nevada Supreme Court by the terms of

its Guinn Order. Further, there is no possibility that the

effectiveness of the Guinn Order will recur — that fact is

assured by the terms of the Guinn Order. As the Ninth

Circuit found:

Neither of the two allegedly harmful actions in this

case (i.e., the Nevada Supreme Court writ of

mandamus ordering the Legislature to conduct the

20th Special Session under “simple majority rule,”

and the “passage” of SB 6 itself) may ever be

repeated, as they were both directed to specific

periods in time that have already passed (i.e., the 20th

Special Session, and the period for planning the 2004

budget).

Pet. App. 3a. Finally, with or without the Guinn Order, there

is no reason to believe that Respondents will ever voluntarily

choose to consider revenue-raising bills as passed or enacted

on simple majority votes, as they never voluntarily chose to

do so in the first place.

Putting aside the issues of the involuntary nature of

Respondents’ conduct, as well as the final and complete

expiration of the Guinn Order, it is additionally worth noting

that it is highly unlikely that the special circumstances which

led to the decision in Guinn J would ever recur, much less

controversy could not conceivably reoccur, but whether it is ‘absolutely

clear that the . . . behavior could not reasonably be expected to recur.””)

(emphasis added) (quoting Concentrated Phosphate Export Ass'n, 393

U.S. at 203).

19

recur and then also result in the issuance of a Guinn-like

order, especially during the 2005 Legislative Session. Such a

recurrence would require the combination of several

extraordinary factors. First, the State of Nevada would have

to find itself in dire economic conditions as it did in 2003

when the State grappled with the economic losses suffered by

the gaming and tourism industries as a result of the historic

“9/11” attack on our nation. This factor seems highly

unlikely, especially for 2005, as Nevada’s state revenues

continue to exceed earlier expectations.°” Second, the

Legislature would have to be at an impasse with education as

the last item still unfunded. After 2006, it may be impossible

for this particular factor to recur. The voters recently passed

Question 1 on the Nevada 2004 General Election Ballot

which, if passed by the voters again in 2006, will amend the

Nevada Constitution to require that education be funded first,

thereby avoiding forever the circumstances that precipitated

the decision in Guinn I. Third, the Governor would have to

take the unusual step of bringing an action in the Nevada

Supreme Court to request the issuance of a writ of mandamus

against the Nevada Legislature. Finally, the Nevada Supreme

Court would have to take the unusual step of again issuing

such a writ of mandamus ordering the Nevada Legislature to

proceed on revenue-raising bills under simple majority rule.

This factor is especially unlikely to recur as the composition

of the Nevada Supreme Court has changed considerably since

the Guinn decisions. Four of the seven justices who will

"cy Ryan, Rainy day fund gets boost from economy, Las Vegas Sun,

December 7, 2004, available at http://www.lasvegassun.com/sunbin/

stories/sun/2004/dec/07/5 1794444 | .html?cy%20ryan%20rainy%20day

(“After the Economic Forum last week made its predictions of tax

collections for the coming two years, legislative fiscal experts estimated

there will be $330 million extra on June 30, 2005, the end of this fiscal

year.”). See also State of Nevada Economic Forum, Forecast of Future

State Revenues, December 1, 2004, at p. 7, available at

http://www.leg.state.nv.us/Icb/fiscal/Economic%20Forum/EF%20Dec%2

01%202004%20Report.pdf.

20

serve on the Nevada Supreme Court as of January 1, 2005,

appear to disagree with, or at least question, the decisions

issued in Guinn.’ Therefore, even in the unlikely event that

another case similar to Guinn is presented to the Nevada

Supreme Court, it would not be reasonable to expect the

same decisions.

D. The exception to mootness for “capable of

repetition yet evading review” does not apply.

As the Ninth Circuit correctly held, the “capable of

repetition yet evading review” exception to the mootness

doctrine does not apply to the instant case. Pet. App. 3a.

This Court has consistently held that:

[T]he capable-of-repetition doctrine applies only in

exceptional situations, where the following two

3! Justice Maupin, who still serves on the Nevada Supreme Court,

dissented in part to the decision in Guinn I. Since the Guinn decisions,

three of the other six justices have been replaced. The new justices,

Justice Douglas, Justice Hardesty and Justice Parraguirre, were recently

elected to the Court, and each justice has commented on the decision in

Guinn I. See Don Cox, Candidates come to dinner: Hopefuls discuss

issues at tables of local residents, Reno-Gazette Journal, October 27,

2004, available at http://www.rgj.com/news/stories/html/2004/10/26/

83742.php (“Was the Supreme Court correct when it ruled last year

to allow the Legislature to pass a tax hike without the two-thirds

majority vote required by the constitution? Hardesty: No. I disagreed

with the court’s handling of the case and the analysis of the decision.”);

Carri Geer Thevenot, SUPREME COURT: Challenger holds lead on

justice: Poll shows Guinn appointee slightly trailing Las Vegas

attorney, Las Vegas Review-Journal, October 22, 2004, available

at http://www.reviewjournal.com/Ivrj_home/2004/Oct-22-Fri-2004/news/

25066004.htm!l (“Douglas has said he thinks the justices acted

prematurely with their ruling in Guinn v. Legislature. He said they should

have told lawmakers ‘to go back to work and not come back until they

passed a budget.’”); Erin Neff, ‘$/ million race’ begins in earnest, Las

Vegas Review-Journal, April 28, 2004, available’ at

http://www. parraguirre2004.com/news3.html (“‘I may not agree with that

decision, and I may not have ruled that way,’ Parraguirre said . . .‘I

wasn’t privy to the extensive briefing that took place in that case. I wasn’t

privy to any of the arguments.””’).

21

circumstances [are] simultaneously present: (1) the

challenged action [is] in its duration too short to be

fully litigated prior to cessation or expiration, and (2)

there [is] a reasonable expectation that the same

complaining party [will] be subject to the same action

again.

Spencer v. Kemna, 523 U.S. 1, 17 (1998) (emphasis added -

and quotations and citations omitted). Further, this Court has

explained that:

[This] Court has never held that a mere physical

or theoretical possibility was sufficient to satisfy the

test [described in Spencer, above].... Rather, we

have said that there must be a “reasonable

expectation” or a “demonstrated probability” that the

same controversy will recur involving the same

complaining party.

Murphy v. Hunt, 455 U.S. 478, 482 (1982) (quoting

Weinstein v. Bradford, 423 U.S. 147, 149 (1975)).

In considering these rules and explanations, it is clear that

this exception to mootness does not apply because there is

not any reasonable expectation that the same allegedly

harmful acts will recur involving Petitioners or anyone else.

As the Ninth Circuit found, it is impossible for the specific

acts at issue in the instant case (e.g., compliance with the

Guinn Order) ever to be repeated. Pet. App. 3a. Further, as

discussed in Part III.C., supra, there is not any reasonable

expectation that the unique combination of special

circumstances which led to Guinn J will recur and also result

in a future Guinn-like order.

IV. The Ninth Circuit’s decision below does not create

any split of authority.

The decision below of the Ninth Circuit is an unpublished

decision, but even if the decision below had precedential

value, it would not create any split of authority.

22

A. There is no conflict with the Seventh Circuit

regarding the mootness of claims for declaratory

relief.

Petitioners forget a pertinent aspect of the instant case —

specifically, their lack of standing to bring their claims for

nominal damages — while asserting a false conflict between

the Ninth Circuit’s decision below and the Seventh Circuit’s

decision in Crue v. Aiken, 370 F.3d 668 (7th Cir. 2004). Pet.

19. Petitioners correctly identify the legal principle at issue,

which is that a claim for declaratory relief which would

otherwise be moot can remain live if needed as a predicate

for a live claim for damages.’ Pet. 19. The Ninth Circuit

has demonstrated its awareness of this legal principle, as

exemplified in Rhodes v. Robinson, 380 F.3d 1123, 1128 n.8

(9th Cir. 2004). However, in the instant case, the Ninth

Circuit correctly found that Petitioners failed to establish

standing to bring their claims for nominal damages, so those

claims for damages were not live. Pet. App. 4a-Sa. See also

Parts I.B., I.C. and I.D., supra. Therefore, because there was

no live claim for damages for which Petitioners’ claim for

declaratory relief was needed, the Ninth Circuit was able to

correctly find that the claim for declaratory relief was moot

without any conflict with the Seventh Circuit in Crue.”

B. There is no conflict with the First Circuit

regarding the mootness exception for “capable

of repetition yet evading review.”

Petitioners misread the Ninth Circuit’s decision below in

asserting a false conflict between the Ninth Circuit’s decision

below and the First Circuit’s decision in Becker v. Federal

Election Comm'n, 230 F.3d 381 (1st Cir. 2000). Pet. 21. The

First Circuit focused on the likelihood of repetition —

specifically, the practically certain nature of corporate

2 See Wolff, 418 U.S. at 555; Crue v. Aiken, 370 F.3d 668, 677-78 (7th

Cir. 2004).

8 See Ashcroft, 431 U.S. at 172 (finding claim for declaratory relief moot

after claim for damages eliminated).

23

sponsorship of presidential debates in the future — as well as

the short length of a presidential election campaign season.

Becker, 230 F.3d at 389. The Ninth Circuit did not forget

about the short length of Nevada legislative sessions. Rather,

the Ninth Circuit focused on the fact that Petitioners’ alleged

injuries concerned the Guinn Order, which had permanently

expired, so the injuries could not recur. Pet. App. 3a. See

also Part III.C., supra. Not only was the Ninth Circuit

correct in finding that Petitioners’ alleged injuries could not

recur, but even if we assume, arguendo, that the Ninth

Circuit’s factual finding was wrong, the Ninth Circuit was

still applying the same test as the First Circuit and simply

coming to a different conclusion by applying the same test to

different facts. Thus, there is no conflict.

C. There is no conflict with the cases cited by

Petitioners regarding the standing of Legislators

_ to bring institutional injury claims.

Petitioners misread or misapply a number of cases

throughout their discussion of Legislator Petitioners’ standing

(see Pet. 22-26), and Respondents address the most

significant of these mistakes here. First, as already discussed

in Part 1.B., supra, this Court’s decisions in Raines and

Coleman require that Legislator Petitioners be found not to

have standing to bring their claim of an institutional injury

because Legislator Petitioners sought to defeat a legislative

measure and, in fact, that legislative measure did not go into

effect. Thus, the Ninth Circuit correctly followed Raines and

Coleman in finding Legislator Petitioners lacked standing.

Therefore, there is no conflict.*4

* Here, Petitioners also incorrectly assert a conflict with the Ninth

Circuit’s own precedent in Gutierrez, 276 F.3d at 545-46. In Gutierrez,

the Ninth Circuit correctly found that the Governor of Guam had standing

to bring his institutional injury claim because (1) his “vote” alone (i.e.,

approving or vetoing legislation) should have been enough to approve the

legislation in question, and (2) the legislation he sought to approve did

not go into effect despite what he alleged was his “vote” of approval. Id.

24

Next, Petitioners invoke Rea v. Matteucci, 121 F.3d 483,

485 (9th Cir. 1997), Conway v. Searles, 954 F. Supp. 756,

767 (D. Vt. 1997), and Richardson v. Town of Eastover, 922

F.2d 1152, 1158 (4th Cir. 1991), for the proposition that it is

possible for a due process violation to occur if a state

legislature does not follow its own procedures. Pet. 23.

These are the cases regarding which Petitioners mistakenly

assert that there are conflicts involving the Fourth and Ninth

Circuits and the District of Vermont. Pet. 25. However,

none of these cases involve claims of an institutional injury.

Further, in none of these cases was standing even an issue, as

the plaintiffs in these cases (unlike the Petitioners in the

instant case) alleged concrete and particularized injuries

sufficient to support standing.*’ Therefore, none of these

cases conflict with the Ninth Circuit’s decision below

regarding Legislator Petitioners’ standing to bring claims of

institutional injuries.

Petitioners also misread this Court’s dicta in footnote 7 of

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544

n.7 (1986). In footnote 7, this Court hypothesized that if

state law had provided that the school board in question could

only take its action (i.e., decide to forgo the appeal in

question) by unanimous consent, but the board had put its

action into effect over the dissent of one member, then the

dissenter would have standing under Coleman. Such

reasoning is consistent with the Ninth Circuit’s application of

Raines and Coleman in the decision below because, in

accordance with this hypothetical, the dissenter’s vote should

have been enough to defeat the action but the action

nonetheless was put into effect, thereby fulfilling the

requirements for standing to challenge the institutional injury.

Therefore, there is no conflict.

* Rea v. Matteucci, 121 F.3d 483, 484 (9th Cir. 1997); Conway v.

Searles, 954 F. Supp. 756, 759 (D. Vt. 1997); Richardson v. Town of

Eastover, 922 F.2d 1152, 1154 (4th Cir. 1991).

EE oe ee ee ae a ee

25

D. There is no conflict with the First, Fifth, Eighth

and D.C. Circuits regarding Standing for

individual voters to bring vote dilution claims.

Petitioners misread the Ninth Circuit’s decision below in

asserting a false conflict with this Court and with the First,

Fifth, Eighth and D.C. Circuits in Miller v. Johnson, 515 U.S.

900 (1995), Coalition for Sensible and Humane Solutions v. -

Wamser, 771 F.2d 395 (8th Cir. 1985), Vote Choice, Inc. v.

DiStefano, 4 F.3d 26 (1st Cir. 1993) (citing United States v.

AVX Corp., 962 F.2d 108, 113-14) (1st Cir. 1992), Daughtrey

v. Carter, 584 F.2d 1050 (D.C. Cir. 1978), Creel v. Freeman,

531 F.2d 286 (Sth Cir. 1976), and Locklear v. North Carolina

State Bd. of Elections, 514 F.2d 1152 (4th Cir. 1975)2° Pet.

26. Petitioners mistakenly assert that the Ninth Circuit

implicitly adopted the following test with regard to standing

for individual voters bringing vote dilution claims: “Vote

dilution or outright vote nullification claims by individual

voters could only be sustained if the candidate opposed (or

supported) by the disenfranchised voters was actually elected

(or defeated).” Pet. 25. The Ninth Circuit adopted no such

test and never applied any such test to individual voters.

Instead, with regard to determining the standing of the

Legislator Petitioners to bring their claim of an institutional

injury, the Ninth Circuit quoted and applied this Court’s

decision in Raines, as follows: “[L]egislators whose votes

would have been sufficient to defeat (or enact) a specific

legislative Act have standing to sue if that legislative action

goes into effect (or does not go into effect), on the ground

that their votes have been completely nullified.” Pet. App. 5a

(quoting Raines, 521 U.S. at 823). Although Legislator

Petitioners styled their claim as a claim for dilution of their

votes as Legislators, the Ninth Circuit implicitly and

correctly treated this claim as a claim of an institutional

injury which was subject to the standing requirements of this

* Respondents address Skaggs v. Carle, 110 F.3d 831, 833 (D.C. Cir.

1997), in Part IV.E., infra.

26

Court’s decisions in Raines and Coleman. Pet. App. Sa. See

also Part 1.B., supra. With regard to the remainder of the

alleged “vote dilution” claims, as brought by the Voter

Petitioners, these claims also were not actual vote dilution

claims. Instead, Voter Petitioners asserted a derivative

institutional injury claim and a generalized claim that the

government was not following the law, neither of which

Voter Petitioners had standing to bring. See Part I.C., supra.

Thus, as the Ninth Circuit did not adopt or apply the test

Petitioners attribute to the Ninth Circuit, there is no conflict

with this Court and the First, Fifth, Eighth and D.C. Circuits.

E. There is no conflict with the D.C. Circuit’s

current jurisprudence regarding standing.

Petitioners rely on the D.C. Circuit’s decisions in Michel

v. Anderson, 14 F.3d 623 (D.C. Cir. 1994), and Skaggs v.

Carle, 110 F.3d 831 (D.C. Cir. 1997), for a number of

propositions regarding standing to maintain claims of

institutional injuries. Pet. 23, 26, 29. However, these

opinions are not the current jurisprudence of the D.C. Circuit

on these issues. After this Court’s decision in Raines, which

specifically identified Michel and then did not follow the

reasoning in Michel (see Raines, 521 U.S. at 816), the D.C.

Circuit changed its approach to standing for claims of

institutional injuries, as exemplified by the post-Raines D.C.

Circuit case of Campbell v. Clinton, 203 F.3d 19 (D.C. Cir.

2000), cert. denied, 531 U.S. 815 (2000).*’ Thus, there is no

conflict.

V. Te alter the result in this case, this Court would

need to revisit and overturn the Nevada Supreme

Court’s interpretation of its own state constitution.

In deciding the Guinn cases, the Nevada Supreme Court

determined that the facts and circumstances present during

the 20th Special Session produced an “irreconcilable

conflict” between certain provisions of the Nevada

* See also Chenoweth, 181 F.3d at 116.

+gQ

27

Constitution, and therefore interpreted one of these

provisions (i.e., funding education) to have precedence over

another of these provisions (i.e., a two-thirds vote to enact

revenue-raising bills). Guinn I, 71 P.3d at 1276; Guinn II, 76

P.3d at 25. In accordance with this interpretation, the Nevada

Supreme Court then ordered the Nevada Legislature to

proceed under simple majority rule during the 20th Special

Session. Guinn I, 71 P.3d at 1276. Thus, the Nevada

Supreme Court’s Guinn decisions and the resultant Guinn

Order were based solely and completely upon the Nevada

Supreme Court’s interpretation of the Nevada Constitution.

In the instant case, Petitioners’ contentions boil down to

nothing more than assertions that Respondents complied

with, and intended to continue to comply with, the Guinn

Order and the provisions of the Nevada Constitution as

interpreted by the Nevada Supreme Court in Guinn.*® Thus,

unless this Court revisits and overturns the Nevada Supreme

Court’s interpretation of the Nevada Constitution in Guinn,

Petitioners have no case. In dismissing the instant case, the

District Court noted this fact when it stated that “[u]nless the

Nevada Supreme Court’s decision in Guinn v. Legislature is

set aside, the defendants herein were in compliance with the

law as mandated by the highest court of the State of Nevada.”

Pet. App. 14a.

This Court has long followed a policy of avoiding the

revisiting and overturning of a state supreme court’s

interpretation of its own state constitution.’ If this Court

** Of course, Petitioners would contend that the Nevada Supreme Court’s

interpretation of the Nevada Constitution in Guinn was incorrect. But, as

previously stated, Legislator Petitioners have already challenged and

appealed Guinn to the fullest extent possible, and the Guinn decisions

were never found to be incorrect. Angle, 124 S. Ct. at 1662-63; Guinn II,

76 P.3d at 33.

*” North Carolina vy. Butler, 441 U.S. 369, 376 n.7 (1979) (“[T]his Court

must accept whatever construction of a state constitution is placed upon it |

by the highest court of the State.”). See also Arizona v. Evans, 514 U.S. |

1, 9 (1995); Exxon Corp. v. Wisconsin Dep't of Revenue, 447 U.S. 207,

\

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28

simply maintains its longstanding policy, then all claims of

all Petitioners fail.

VI. Alternative independent grounds — specifically,

immunity — support the result in this case.

In addition to the foregoing, the District Court and the

Ninth Circuit could have reached the same result —

specifically, a result favorable to Respondents — by

considering the immunity of the various Respondents.”” This

is especially relevant with regard to Petitioners’ claims for

damages pursuant to 42 U.S.C. § 1983 (2003).

First, as Respondents Nevada Legislature, Nevada

Assembly and Nevada Senate are institutional arms of the

State of Nevada, all are immune from Petitioners’ suit

pursuant to the Eleventh Amendment to the United States

Constitution.*! Further, Respondents Hon. Richard Perkins,

Speaker of the Nevada Assembly, and Hon. Lorraine Hunt,

Lieutenant Governor and President of the Senate, as officers

of the State being sued in their official capacities, also enjoy

a degree of Eleventh Amendment immunity.”

226 n.9 (1980); Williams v. Eggleston, 170 U.S. 304, 310-11 (1898);

Nesmith v. Sheldon, 48 U.S. 812, 818 (1849). Cf Johnson v. Fankell, 520

U.S. 911, 916 (1997) (“Neither this Court nor any other federal tribunal

has any authority to place a construction on a state statute different from

the one rendered by the highest court of the State. This proposition,

fundamental to our system of federalism, is applicable to procedural as

well as substantive rules.”) (emphasis added and citations omitted).

“ The District Court recognized the immunity issue, but disposed of the

case otherwise. Pet. App. 14a (“[W]e need not address the substantial

issues of immunity and ripeness.”).

“' Will v. Michigan Dep’t of State Police, 491 U.S. 58, 62 (1989);

Alabama v. Pugh, 438 U.S. 781, 782 (1978); Nev. Rev. Stat. 41.031(3)

(2003) (providing that Nevada does not waive its Eleventh Amendment

immunity).

® Arizonans for Official English, 520 U.S. at 69 n.24 (“State officers in

their official capacities, like States themselves, are not amenable to suit

for damages under § 1983.”). Additionally, Respondent Perkins, an

Assemblyman as well as Speaker of the Nevada Assembly, enjoys

absolute immunity from suit brought under 42 U.S.C. § 1983 while acting

29

Second, Respondents Hunt and Perkins, to the extent not

covered by the Eleventh Amendment immunity discussed

above, and Respondents Jacqueline Sneddon, Diane Keetch,

Brenda Erdoes and Claire Clift, who are all employees of the

Nevada Legislature being sued in their official Capacities,

raised in the District Court and continue to maintain the

affirmative defense that Respondents acted based upon a .

good faith belief that their actions were lawful.” This

affirmative defense is a type of qualified immunity,

applicable to the officers and employees of the Nevada

Legislature in the instant case because they do not exercise

broad independence of judgment with respect to performing

the official duties concerning which Petitioners complain —

specifically, the treatment of a bill as passed or defeated upon

a given vote.“

VII. On the merits, Petitioners bring only slightly altered

versions of the same claims which this Court has

already declined to hear in Guinn and which still do

not merit review.

In petitioning this Court for a writ of certiorari in the

instant case, Petitioners have brought claims which in

substance are the same claims Legislator Petitioners brought

to this Court in the appeal of the Guinn case and which this

Court declined to hear. Angle, 124 S. Ct. at 1662-63. In

in his capacity as a State Legislator. Supreme Court of Virginia v.

Consumers Union of United States, Inc., 446 U.S. 719, 732-34 (1980);

Tenney v. Brandhove, 341 U.S. 367, 377-79 (1951).

* Cf Gomez v. Toledo, 446 U.S. 635, 639 (1980) (“[W]e have held, on

the basis of [c]Jommon-law tradition ... and strong public-policy

reasons, that certain categories of executive officers should be allowed

qualified immunity from liability for acts done on the basis of an

objectively reasonable belief that those acts were lawful.”) (quotations

and citations omitted); Procunier y. Navarette, 434 U.S. 555, 561-62

(1978); Wood v. Strickland, 420 U.S. 308, 320-22 (1975); O'Connor vy.

Donaldson, 422 U.S. 563, 577 (1975); Morales v. Vega, 483 F. Supp.

1057, 1060 (D.P.R. 1979).

“ See supra note 43.

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30

Guinn, the Legislator Petitioners claimed that the Nevada

Supreme Court had committed various constitutional

violations in its issuance of the Guinn Order. In the instant

case, Petitioners claim that Respondents have committed

these violations by following the Guinn Order. Pet. App.

14a. At their core, they are the same claims, even including

the nonjusticiable political questions arising from the alleged

violations of the Guarantee Clause of Article IV of the United

States Constitution. Pet. 8, 12. These claims did not merit

review then, and still do not merit review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

WILLIAM L. KEANE

Counsel of Record

SCOTT G. WASSERMAN

LESLIE HAMNER

M. SCOTT MCKENNA

R. RENE YECKLEY

LEGISLATIVE COUNSEL BUREAU

NEVADA STATE LEGISLATURE

401 S. Carson Street

Carson City, NV 89701

(775) 684-6830

Counsel for Respondents The Legislature of the State of

Nevada, The Senate of the State of Nevada, Hon. Lorraine T.

Hunt, The Assembly of the State of Nevada, Hon. Richard D.

Perkins, Jacqueline Sneddon, Diane Keetch, Brenda Erdoes,

and Claire J. Clift

Dated: December 14, 2004.