# Opposition Brief — Angle v. Legislature of Nevada

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1480%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1120

## Text

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case to review an unpublished decision which does not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
:
/

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 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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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1480%3A2. Public record. Not legal advice.