Petition for Writ of Certiorari — Rattner v. City of Boulder City (No. 06-796)

Supreme Court, U.S.

ait Be ef

96-796020 5 - 2006

No.______ OFFICE OF THE CLERK

IN THE

Supreme Court of the

United States | i

SHERMAN RATTNER: NANCY NOLETTE: FRANK L.

FISHER: LINDA ROBERTSHAW: DON L. SHETTEL. JR.:

DOLORES GABAY.

Petitioners,

v.

CITY OF BOULDER CITY, NEVADA;

CLARK COUNTY, NEVADA,

Respondents.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Nevada

PETITION FOR A WRIT OF CERTIORARI

JASON J. BACH TRAVIS CHANDLER

Pit: BACH LAW FIRM. LLC — Nevada Bar No. 8778

Nevada Bar No. 7984 1489 W. Warm Springs Rd

2620 Regatta Drive. Suite 102 Henderson. Nevada 89014

Las Vegas. Nevada 89128 702-966-8237

702-925-8787

Counsel of Rec Tye | for Petitioners

QUESTIONS PRESENTED

The Supreme Court of Nevada has held that citizens

may not vote on initiatives and referenda concerning

matters deemed administrative, and under that holding

struck citizen initiatives from the November 7, 2006

general election ballot. This raises two important federal

constitutional questions that warrant review by this Court:

1. Whether the holdings of the Supreme Court of

Nevada adopting an administrative exception to strike

ballot initiatives and referenda impermissibly limit core

political speech, are void for vagueness, and are overbroad

in violation of the First Amendment of the United States

Constitution?

2. Whether the holdings of the Supreme Court of

Nevada adopting an administrative exception to strike

ballot initiatives and referenda violate the sovereign rights

and powers of the people under the First, Ninth, and Tenth

Amendments of the United States Constitution?

- TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED .........00ccceeeee:

TABLE OF AUTHORITHS ................-. iii

RPUIONS BELOW ...........00cccccccesess 1

cc cvccccosccecocecess 2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED ................000+. 4

STATEMENT OF THE CASE ............0000: 6

REASONS FOR GRANTING THE WRIT....... 9

I. Review is Warranted Because The Supreme Court

Of Nevada Has Disregarded Federal Constitutional

Guarantees of Freedom of Speech .............. 9

II. Review is Warranted Because The Supreme

Court of Nevada Disregarded Federal Constitutional

Guarantees of Popular Sovereignty ........... 16

DEINE Bag cescccscccssecvecevescscs 23

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

First Amendment to the United States Constitution

ea pha RO Ia a a Sod een 4,9, 13,17

Ninth Amendment to the United States Constitution

Pe Sa PM es SN Ee eR eT 4,9, 19

Nevada Constitution Article 1 Section 2 ........ 5, 21

Nevada Constitution Article 19 Section2 ...... 10, 15

Nevada Constitution Article 19 Section 4 ... 10,15, 21

CASES CITED

Citizens for a Public Train Trench Vote v. Reno, 118

Nov. 576, 33.P.36 SOF GROUSE) ccccesisvseenves 11-13

iv

City of Eastlake v. Forest City Enterprises, Inc., 426

ce FL SER eter ee eeniny eat 11, 12, 20

City of Cuyahoga Falls v. Buckey. Community Hope

Foundation, 538 U.S. 188, 123 S. Ct. 1389 (2003)

SAE a pr re rome Ye 3, 19, 20, 22, 23

Denman v. Quin, 116 S.W.2d 783, 786 (Tex. Civ. App.

PM Gk eal Oddo eee elie eee eRe! 12

Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533,

SIG Fe ESO CIFTIF) « « vcncevtvccns 10-13, 15, 21, 22

Garvin v. Ninth Judicial Dist. Ct., 118 Nev. 749, 59

ge Be on Bre reer ney arene re Lg oe

Glover v. Concerned Citizens for Fuji Park, 118 Nev.

SE ee FO Eo bik bv s Cav etcieree te 10, 11

Humphrey v. Balli, 61 S.W.3d 519, 2001 Tex. App.

Se AE EEE: K0 bp ose debe celes¥ feanuoy bas 12

James v. Valtierra, 402 U.S. 137, 91 S. Ct. 1331 (1971)

RAs oe ae ee iewe da waa aes 10, 20

McCulloch v. Maryland, 17 U.S. 316, 4 Wheat 316

SOE sv 44s area tea edweteceriaseeeaneees 19

Meyer v. Grant, 486 U.S. 414, 108 S. Ct. 1886 (1988)

teres Rane pale euic circa sae ae eee

Police Dept of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct.

pes ge Ren em nays pyar ah aA TEM PRN era as 4! 14

Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304

2 8 eS oir ar ore eer ear SIP aN erty ie Gee 9

Staub v. Baxley, 355 U.S. 313, 78 S. Ct. 277 (1967) 13

Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347

SR SE a Nas Ae eee a ee y

OTHER

Declaration of Independence, July 4, 1776......... 16

Be as 0 BOP 8 ks cece caged baeedns eaReaD 2

City of Boulder City, Nevada City Charter Section

POR Sain 5 ds dey we Skee knee ieee 6, 14

The Federalist Papers, No. 78 (Hamilton) ......... 16

The Federalist Papers, No. 84 (Hamilton) ......... 16

Akhil Reed Amar; The Bill of Rights: Creation and

Reconstruction, Yale University Press, New Haven,

St Ole a kd sob oes hood Cees 17,18

Thomas B. McAffee, Jay S. Bybee, A. Christopher

Bryant; Powers Reserved for the People and «he States:

A History of the Ninth and Tenth Amendments, Praeger

Publishers, Westport, 2006, p43. ............... 18

5 McQuillan, Municipal Corporations, Sec. 16.52. . 22

PETITION FOR A WRIT OF CERTIORARI

Petitioners are citizens of the State of Nevada and the

City of Boulder City. Petitioners, sponsors of four

initiatives concerning matters important to the voters and

citizens of Boulder City, respectfully pray that this Court

issue a writ of certiorari to review the holding of the

Supreme Court of Nevada in this case. In plain

contravention of the requirements of the Constitution of

the United States, the state supreme court has exercised its

judicial power in a manner that violates the rights and

powers of its citizens. Because core political speech and

the power of the people to exercise control over their

government are protected by the Constitution of the United

States, the court's decision involves issues of the utmost

federal importance.

OPINIONS BELOW

On September 8, 2006, the Supreme Court of Nevada

entered an Order of Affirmance in this case, a copy of

which appears in the Appendix to this Petition, pp App. I.

This order affirmed the Order Granting Declaratory,

Injunctive, and Extraordinary Relief to enjoin the city clerk

of Boulder City from placing the initiatives on the general

election ballot, entered from the Nevada 8" Judicial

District Court on July 20, 2006, a copy of which appears in

the Appendix to this Petition, pp App. 12.

JURISDICTION

The judgment of the Supreme Court of Nevada

affirming the district court order was entered on September

8, 2006. Appendix, p. App. 1. Because it involves

important questions of federal constitutional law, the

jurisdiction of this Court is invoked under 28 U.S.C. §

1257(a).

Although the election has passed, this Court may

consider this case if “‘(1) the challenged action [is] in its

duration too short to be fully litigated prior to its cessation

or expiration, and (2) there [is] a reasonable expectation

that the same complaining party would be subjected to the

same action again.” Murphy v. Hunt, 455 U.S. 478, 482, -

102 S. Ct. 1181 (1982)(per curiam), quoting Weinstein v.

Bradford, 423 U.S. 147, 149, 96 S. Ct. 347 (1975) (per

curiam). Ballot initiative actions are susceptible to short

duration periods precluding full litigation. See, e.g.,

Meyer v. Grant, 486 U.S. 414, 108 S. Ct. 1886 (1988).

Should this Court hear this case in an expedited manner,

these initiatives might be placed on the ballot for the

upcoming municipal election scheduled for June, 2007. If

a timely hearing and resolution by this Court for that

purpose is not possible, the complaining party nevertheless

will likely be subject to the same action, where Petitioners

are presently drafting new initiatives concerning the same

matters. Therefore this Court should not reject this petition

for mootness.

Petitioners expressly raised the federal constitutional

questions presented in this petition at all stages of the

proceedings so far. “In the district court hearing . . . and

Opposition Brief, Defendants appearing in Proper Person

argued that the voters have the reserved power to do any

action a city council may do, challenging the

constitutionality of the administrative exception.”

Appellants’ Opening Brief, pp 19.

The Petitioners maintained the constitutional challenge

before the Supreme Court of Nevada as one of three major

questions presented for review; “In determining the

answer, the court must decide: . . . 3) and whether the

administrative exception is authorized under the Nevada

Constitution or permitted under the United States

Constitution.” Jd. at 3. Petitioners expressly cited authority

_from this Court that rejects the administrative exception

“as a matter of federal constitution law.” Jd. at 25-26,

citing City of Cuyahoga Falls v. Buckeye Community Hope

Foundation, 538 U.S. 188, 123 S. Ct. 1389 (2003). At oral

arguments the Supreme Court of Nevada questioned

counsel for both parties concerning the meaning and

applicability of Cuyahoga. The Supreme Court of Nevada

expressly addressed the federal constitutional challenge in

its Order of Affirmance. Appendix, pp App. 3-4, ftn 2.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

—~ The First Amendment to the Constitution of the United

States Free Speech clause and the Assembly and Petition

clauses provide: “Congress shall make no law...

abridging the freedom of speech, . . . or of the right of the

people peaceably to- assemble, and to petition the

Government for a redress of grievances.”

The Ninth Amendment to the Constitution of the

United States provides: “The enumeration in the

Constitution, of certain rights, shall not be construed to

deny or disparage others retained by the people.”

The Tenth Amendment to the Constitution of the

United States provides “The powers not delegated to the

United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the

people.”

Section 1 of the Fourteenth Amendment to the

Constitution of the United States provides:

“. . . No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

Article 1 Section 2 of the Constitution of Nevada

provides in part: “All political power is inherent in the

people[.] Government is instituted for the protection,

security and benefit of the people; and they have the nght

to alter or reform the same whenever the public good may

require it.” A

The Constitution of Nevada was amended to provide

for voter initiatives and referenda in 1905 by Article 19.

The relevant sections of Article 19, as amended, are:

Article 19, Section 2.1. Notwithstanding the provisions

of Section 1 of Article 4 of this Constitution, but

subject to the limitations of Section 6 of this Article,

the people reserve to themselves the power to propose,

. by initiative petition, statutes and amendments to

statutes and amendments to this Constitution, and to

enact or reject them at the polls.

Article 19, Section 4. The initiative and referendum

powers provided for in this article are further reserved

to the registered voters of each county and each

municipality as to all local, special and municipal

legislation of every kind in or for such county or

municipality. In counties and municipalities initiative

petitions may be instituted by a number of registered

voters equal to 15 percent or more of the voters who

voted at the last preceding general county or municipal

election. Referendum petitions may be instituted by 10

percent or more of such voters.

The charter of Boulder City, Nevada, Article XV,

Section 140.1.A provides:

All City-owned lands shall be sold or otherwise

disposed of by ordinance, and any sales or disposition

of parcels of more than one acre must be approved by

the registered voters of the City at an election held in

conjunction and in accordance with the election as

required by Article XV, Section 143 of the Boulder

City Charter.

STATEMENT OF THE CASE

The City of Boulder City sought to remove four

initiative petitions from the general election ballot for

November 2006. This case is an Appeal from the Order of

Affirmance of the Supreme Court of Nevada, entered

September 8, 2006, Appendix, pp App. 1, affirming the

order of the Nevada 8th Judicial District Court granting

Declaratory, Injunctive, and Extraordinary Relief in favor

of Respondent City of Boulder City. In accordance with

the order, the city clerk removed the four initiative

petitions from the general election ballot of November

2006 and consequently they were not voted upon.

The facts of this case are not in dispute. The

Petitioners, Defendants in the proceedings in District Court

and Appellants in the Supreme Court of Nevada, are

Sherman Rattner, Nancy Nolette, Frank L. Fisher, Linda

Robertshaw, Don L. Shettel, Jr., and Dolores Gabay

(hereinafter the Petitioners' Committee or Petitioners), and

all are residents and registered voters of Boulder City,

Nevada.

Respondent Boulder City had acquired 107,412 acres

of mostly vacant adjoining land known as the Eldorado

Valley Transfer Area in 1995. The Petitioners’ Committee

filed several initiative petitions with respect to the Transfer

Area. One initiative was for a charter amendment to sell

the land in the Transfer Area, with the proceeds to be

distributed to Boulder City and to the city's Residents of

Record as of March 31, 2006. Appendix, pp App. 19.

Another initiative was for a charter amendment to preserve

the Transfer Area, by limiting its uses to public recreation,

a desert tortoise preserve, and a solar energy peaking

station. Appendix, pp App. 18. The city clerk certified

these and two other petitions for essentially equivalent

ordinances as having sufficient valid signatures for the

November general election ballot.

Boulder City, joined by Clark County, filed motions in

district court seeking to enjoin the city clerk from placing

the initiatives on the ballot. The Petitioners’ Committee in

Proper Person filed an Opposition to Boulder City's

motions. The Nevada 8th Judicial District Court held a

hearing on the motions, where it ruled in favor of Boulder

City, and entered an order for removal of the initiatives

from the November ballot. The Petitioners' Committee,

through counsel, appealed to the Supreme Court of

Nevada, which held oral arguments. On September 8,

2006, the Supreme Court of Nevada entered an order

affirming the district court ruling. Appendix, pp App. I

The sole permissible grounds under Nevada authority

presented by Boulder City in the Supreme Court of Nevada

for pre-election removal of the initiatives was that they.

concerned administrative matters and therefore were not

properly delegated subject matter for the voters’

consideration. Petitioners argued in their briefs and at oral

arguments that the initiatives were policy-forming and

legislative, and thus were proper subject matter.

Petitioners further argued that the administrative exception

is not authorized under the Nevada Constitution. Finally,

Petitioners argued that the administrative exception has

been rejected by the Supreme Court of the United States on

federal constitutional grounds. The Supreme Court of

Nevada ruled against the Petitioners’ Committee on all

points. Petitioners hereby seek review in this Honorable

Court on the federal constitutional grounds.

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE. GRANTED SO THAT

THIS COURT MAY SETTLE AN IMPORTANT

QUESTION OF FEDERAL CONSTITUTIONAL

LAW THAT HAS NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT, AND WHERE STATE

SUPREME COURTS HAVE DECIDED THE

QUESTION IN WAYS THAT CONFLICT WITH

RELEVANT DECISIONS OF THIS COURT.

I. Review is Warranted Because The Supreme Court

Of Nevada Has Disregarded Federal Constitutional

Guarantees of Freedom of Speech

The First Amendment “was fashioned to assure

unfettered interchange of ideas for the bringing about of

political and social changes desired by the people.” Roth v.

United States, 354 U.S. 476, 484, 77 S. Ct. 1304 (1957).

The circulation of petitions for ballot initiatives and

referenda are “core political speech” within “an area in

which the importance of First Amendment protections is

“at its zenith.” ” Meyer v. Grant, 486 U.S. 414, 425, 108

S. Ct. 1886, 1894 (1988). The protections of the First

Amendment are enforceable against the states through

Section | of the Fourteenth Amendment. Limitations on

political expression are subject to exacting scrutiny. Meyer

v. Grant, 486 U.S. 414, 420, 108 S. Ct. 1886, 1891 (1988).

(

10

Core political speech is advanced where ballot

petitioners can “make the matter the focus of statewide

discussion” not just by gathering petition signatures, but by

getting the matter on the ballot before the voters. Meyer v.

Grant, 486 U.S. 414, 423, 108 S. Ct. 1886, 1892 (1988).

An initiative or referendum that comes before the

electorate advances core political speech because it

“ensures that all the people of a community will have

a voice in a decision which may lead to large

expenditures of local governmental funds for increased

public services and to lower tax revenues. It gives

them a voice in decisions that will affect the future

development of their own community.” James v.

Valtierra, 402 U.S. 137,143, 91 S. Ct. 1331, 1334

(1971).

The language of the Nevada Constitution, Article 19,

supra pp 4-5, does not expressly exclude administrative

matters. Moreover, the word “administrative” appears

nowhere in Article 19. The administrative exception exists

as a judicially created rule adopted in Nevada in a line of

cases starting in 1973.

In Forman a referendum and an initiative concerning

zoning changes to a single commercial property were both

invalidated after the election. Forman v. Eagle Thrifty

Drugs & Markets, 89 Nev. 533, 516 P.2d 1234 (1973). In

Fuji Park an initiative to preserve a large city park was

invalidated prior to the election. Glover v. Concerned

Citizens for Fuji Park, 118 Nev. 488, 50 P.3d 546 (2002).

11

In Train Trench an initiative to stop the construction of a

$280 million lowered railroad through Reno was

invalidated pre-election. Citizens for a Public Train

Trench Vote v. Reno, 118 Nev. 574, 53 P.3d 387 (2002).

In Garvin, a petition to limit the number of building

permits countywide was invalidated under the

administrative exception in a district court proceeding but

reinstated in the Supreme Court of Nevada pre-election,

Garvin v. Ninth Judicial Dist. Ct., 118 Nev. 749, 59 P.3d

1180 (2002). In Garvin, the Supreme Court of Nevada

overruled parts of Forman, concluding that general zoning

matters were now legislative and not administrative, and

also overruling parts of Fuji Park, and Train Trench, the

Jatter two cases decided just months prior to Garvin.

The Supreme Court of Nevada has admitted the

administrative exception is vague: “This legislative-

administrative dichotomy is often vague...” Forman, 8&9

Nev. at 537. In its application, the Supreme Court of

Nevada continues to use indefinite terminology: “. . . an

initiative creating a general land-use policy (establishing a

commercial buffer zone around elementary and junior high

schools) seemed legislative, but the land- specific

referendum at issue in Forman (merely rezoning a single

parcel owned by one entity) seemed administrative.”

Appendix, pp App. 6-7 (emphasis added)

Other states also maintain a distinction between

initiatives that are legislative in character and those that are

administrative. See, e.g. dissent of Mr. Justice Stevens

joined by Mr. Justice Brennan in City of Eastlake v. Forest

12

City Enterprises, Inc., 426 U.S.668 (1976), at 683. But the

states categorize matters differently: “While courts draw

similar distinctions, they are not entirely consistent about

which category any particular type of measure fits within.”

Train Trench, 118 Nev. 574, 583, 53 P.3d 387, 392.

Nevada has ruled sales of specific parcels of municipal

land as administrative in the present case, while Texas has

held that such sales are legislative as a matter of law.

Humphrey v. Balli, 61 S.W.3d 519, 2001 Tex. App. LEXIS

5133 (2001). In Balli, the Texas appellate court applied

the same test to distinguish between legislative and

administrative, from Denman, that was first used by

Nevada in Forman and affirmed in Garvin:

"An ordinance originating or enacting a permanent law

or laying down a rule of conduct or course of policy for

the guidance of the citizens or their officers and agents

is purely legislative in character and referable, but an

ordinance which simply puts into execution previously-

declared policies, or previously-enacted laws, is

administrative or executive in character, and not

referable." Denman v. Quin, 116 S.W.2d 783, 786

(Tex. Civ. App. 1938).

Application of the administrative exception rules

adopted by state courts is further complicated by other

considerations: “whether a particular municipal activity is

"administrative" or is "legislation" often depends not on

the nature of the action but the nature of the legal

framework in which the action occurs.” Train Trench, 118

Nev. 574, 583, 53 P.3d 387, 392.

13

Describing the three cases decided in Nevada in 2002,

the Petitioners’ Committee noted: “From the turmoil of

Nevada cases in 2002, two of which were partly overruled

before the end of the same year they were decided, it is

clear the administrative exception is not established on a

firm foundation.” Appellants Opening Brief, pp 12.

The vagueness of the test for the administrative

exception gives courts unfettered discretion to dispose of

initiatives and referenda: “... but it is this very vagueness

which has given the courts considerable leeway in

balancing two competing interests: that of protecting

government from unwarranted harassment and the equal

interest in protecting benefits to be won through direct

legislation.” Forman, 89 Nev. 533, 537,516 P.2d 1234,

1236. A

These vague rules that give courts and local officials

considerable leeway serve as unfettered discretion to limit

core political speech, and are impermissible under the First

Amendment: “. . . an ordinance which . . . makes the

peaceful enjoyment of freedoms which the Constitution

guarantees contingent upon the uncontrolled will of an

official . . . is an unconstitutional censorship or prior

restraint upon the enjoyment of those freedoms.” Staub v.

Baxley, 355 U.S. 313, 322, 78 S. Ct. 277, 288 (1967).

Also: “government may not grant the use of a forum to

people whose views it finds acceptable, but deny use to

those wishing to express less favored or more controversial

views. And it may not select which issues are worth

discussing or debating in public facilities.” Police Dep't of

14

Chicago v. Mosley, 408 U.S. 92, 96, 92 S. Ct. 2286 (1972).

The administrative exception is a powerful tool that

public officials can use to quash initiatives they oppose.

Section 140.1.A of the charter of Boulder City, supra at 6,

requires a voter referendum each time the city council

votes to sell more than one acre of city owned land.

Officials of the City of Boulder City have abused this

unfettered discretion when, pursuant to the charter, they

placed their own land sale measure on the ballot (later

removing it) Appellants Opening Brief, pp 14, then used

the judicially created administrative exception to remove

the citizens’ initiatives for land sales they opposed (this

case), and then placed yet another specific land sale

measure of their own origin on the November 7, 2006

general election ballot,’ all within the same election cycle

and calendar year.

To justify a restriction upon freedom of speech rights

based on content, the state has the high burden of showing

a compelling interest. The Supreme Court of Nevada has

offered the vagueness of the administration exception as

affording the benefit of “protecting government from

unwarranted harassment”, Forman, 89 Nev. 533, 537,516

' BOULDER CITY QUESTION NO. 3 Shall the City sell

between five (5) and five and one-half (5 1/2) acres in the Boulder

City industrial area to be utilized for small business purposes, the

proceeds of which will be deposited into the Capital Improvement

Fund?

15

P.2d 1234, 1236. The purpose of avoiding unwarranted

harassment is not best served by this means, “because the

minimum number of petition signers, 10% of voters

statewide Nev. Const. art. 19, § 2, or 15% for municipal

elections Nev. Const. art. 19, § 4, provide the barrier

sufficient to eliminate measures that are intended solely to

harass government, but lack any real popular support.”

Appellants’ Opening Brief, pp 23.

The Supreme Court of Nevada reaffirmed the

protecting-government-from-harassment state interest in its

Order striking the initiatives to “sell” the Transfer Area:

“The significant time and resources implicated by

implementing these administrative details illuminates the

policy underlying the administrative act exception: to

prevent the electorate from destroying or impeding the

efficient administration of governmental affairs.”

Appendix, pp App. 7.

The administrative exception is an overbroad restriction

on core political speech, not narrowly tailored to serve that

policy or state interest. That is, the Supreme Court of

Nevada also used the administrative exception to strike the

“preserve” initiatives, which would impose no increased

burden at all upon city administration. Further, many

initiatives that “seem” legislative, and therefore

permissible, also have the effect of increasing the burden

upon the efficient administration of governmental affairs.

16

Voters understand that initiatives, their elections, and

‘government itself are expensive and complicated matters,

but have reserved to themselves the right and the power to

make those choices directly. It is their fundamental right

to speak collectively about how their government may best

serve them.

II. Review is Warranted Because The Supreme Court

of Nevada Disregarded Federal Constitutional

Guarantees of Popular Sovereignty

“[I}t is the Right of the People to alter or to abolish

[Government], and to institute new Government .. .”

Declaration of Independence, July 4, 1776.

This declaration of popular sovereignty is echoed in the

Preamble to the Constitution: “We the People . . . do

ordain and establish this Constitution for the United States

of America...” and was a recurring theme throughout its

ratification debates, e.g.: “... It only supposes that the

power of the people is superior to both [the legislature and

the judiciary]. ” The Federalist Papers, No. 78

(Hamilton). And: “Here, in strictness, the people have

surrendered nothing; and as they retain everything, they

have no need of particular reservations.” The Federalist

Papers, No. 84 (Hamilton).

The Bill of Rights are commonly thought of today as

concerned only with countermajoritarian protections of the

rights of individuals and minority groups. However, the

original intent included the purpose of popular sovereignty

17

as well, of securing the rights of the majority against abuse

by a self-interested Congress:

“Our First Amendment’s focus on Congress suggests

that its primary target was attenuated representation,

not Overweening majoritarianism. Congress was

singled out precisely because it was less likely to

reflect majority will.”* (emphasis in original)

Thus the First Amendment “right of the people peaceably

to assemble, and to petition the Government for a redress

of grievances” -was intended to enable and protect the

people in their exercise of their popular sovereignty, for

example, in convention.

The Ninth Amendment has most commonly been

invoked for the countermajoritarian protections it provides

individuals. However, the original intent behind the Ninth

Amendment includes a protection of the collective,

majoritarian right of popular sovereignty: “Indeed the most

obvious and inalienable right underlying the Ninth

Amendment is the collective right of We the People to

alter or abolish government, through the distinctly

American device of the constitutional convention.”

2 Akhil Reed Amar; The Bill of Rights: Creation and

Reconstruction. Yale University Press, New Haven, 1998, p 22.

3 Id. at 120.

18

The Tenth Amendment has been invoked most

commonly as a source of protection of the powers of the

states from encroachment by the federal government.

However, its original intent was also a declaration of

popular sovereignty with respect to both the federal

government and the states: “The popular sovereignty motif

of the Tenth Amendment could not be more obvious. We

the People, acting collectively, have delegated some

powers to the federal government, have allowed others to

be exercised by state governments, and have withheld

some things from all governments.”* Other sources

support this as the original intent in the drafting the Tenth

Amendment:

“What little evidence we have from the First Congress

tends to confirm that . . . a stated general reservation of

power should reflect that it is the people who grant and

reserve powers to both the federal and state

governments, and therefore that the reserved powers

are reserved first to the people and second to the

states.””*

While a very few of the provisions of the Bill of Rights

have not been incorporated as applying to the states by

* Id. at 119.

> Thomas B. McAffee, Jay S. Bybee, A. Christopher

Bryant; Powers Reserved for the People and the States: A History

of the Ninth and Tenth Amendments, Praeger Publishers, Westport,

2006, p 43.

19

means of Section 1 of the Fourteenth Amendment, those

that concern popular sovereignty have been. The popular

sovereignty provisions should apply even before

incorporation, since for the People to retain sovereignty

over the federal government but to be subservient to the

states makes no sense. This Court has consistently

recognized the primacy of popular sovereignty, from early

_in the nation’s history:

“From these Conventions the constitution derives its

whole authority. The government proceeds directly

from the people; is "ordained and established" in the

name of the people; .. . The government of the Union,

then, . . . is, emphatically, and truly, a government of

the people. In form and in substance it emanates from

them. Its powers are granted by them, and are to be

exercised directly on them, and for their benefit.”

McCulloch v. Maryland, 17 U.S. 316, 403-405, 4

Wheat 316 (1819).

More recently, in City of Cuyahoga Falls v. Buckeye

Community Hope Foundation, 538 U.S. 188, 123 S. Ct.

1389 (2003), this Court unanimously rejected the

administrative exception to voter referendums:

“As a matter of federal constitutional law, we have

rejected the distinction that respondents ask us to draw,

and that the Ohio Supreme Court drew as a matter of

state law, between legislative and administrative

referendums. In Eastlake v. Forest City Enterprises,

Inc., 426 U.S., at 672, 675, we made clear that because

all power stems from the people, "[a] referendum

cannot . . . be characterized as a delegation of power,"

unlawful unless accompanied by "discernible

- standards." The people retain the power to govern

through referendum "with respect to any matter,

legislative or administrative, within the realm of local

affairs." Id., at 674, n. 9. Cf. James v. Valtierra, 402

U.S., at 137. Though the “substantive result” of a

referendum may be invalid if it is “arbitrary and

capricious," Eastlake v. Forest City Enterprises, supra,

at 676, respondents do not challenge the referendum

itself. The subjection of the site-plan ordinance to the

City's referendum process, regardless of whether that

ordinance reflected an administrative or legislative

decision, did not constitute per se arbitrary government

conduct in violation of due process.” Cuyahoga Falls,

538 U.S., at 199, 123 S. Ct., at 1396.

This passage was quoted as presented here in

Petitioners’ brief to the Supreme Court of Nevada.

Appellants Opening Brief, pp 25-26. The federal

constitutional law invoked in Cuyahoga is the protection

of core political speech in the referendum process, and the

assertion of popular sovereignty where “all power stems

from the people”.

Petitioners argued before the Supreme Court of Nevada

that the scope of popular sovereignty was not limited by

the plain language or the intent of the Nevada Constitution:

“All political power is inherent in the people[.]

Government is instituted for the protection, security and

21

benefit of the people; and they have the right to alter or

reform the same whenever the public good may require it.

Nev. Const. art. 1, § 2.” Appellants’ Opening Brief, pp 24.

Petitioners further argued that the administrative exception

to the right and power of the people to petition government

was not authorized by the Nevada Constitution, where

“The initiative and referendum powers provided for in this

article are further reserved to the registered voters of each

county and each municipality as to all local, special and

municipal legislation of every kind in or for such county or

municipality. Nev. Const. art. 19, § 4.” Appellants’

Opening Brief, pp 21.

The Supreme Court of Nevada rejected those

arguments, and affirmed its holding in Forman that the

Nevada Constitution does not permit delegation of powers

to the people concerning initiatives and referenda that are

administrative. In Forman the Supreme Court of Nevada

characterizes administrative matters as an impermissible

delegation of power to the people:

“When in a matter of state-wide concern the state

legislature has specifically delegated particular

authority to a governing board, the courts have

uniformly held that initiative processes do not

ordinarily apply. 5 McQuillan, Municipal

Corporations, Sec. 16.52. The State of Nevada has

delegated comprehensive powers to cities and towns in

the area of zoning regulation.” Forman, 89 Nev. 533,

538, 516 P.2d 1234, 1237.

22

Nevada (and other states) characterize administrative

matters as delegations by a legislature of power to its

agencies and entities, where such a “delegation” to a

popular vote is constitutionally impermissible. This view

has been expressly disapproved by this Honorable Court in

Cuyahoga and the line of cases cited therein.

The Supreme Court of Nevada distinguished the

opinion in Cuyahoga rejecting the administrative

exception, saying the opinion applies only to “federal

constitutional law.” Appendix p App. 3, note 2. This

ignores the express language from Cuyahoga that rejects

the administrative exception on federal constitutional

grounds - not in the context of a national referendum - but

rather in the context of local affairs: “The people retain the

power to govern through referendum ‘with respect to any

matter, legislative or administrative, within the realm of

local affairs.’ ” Cuyahoga, 538 U.S. at 199 (emphasis

added).

- The Supreme Court of Nevada went on to say “This

decision, moreover, concurrently acknowledges that the

distinction may exist as a matter of state law.” Appendix,

pp App. 3-4, note 2. Petitioners dispute this interpretation

of Cuyahoga by the Supreme Court of Nevada, which

holds that a state court interpretation of a state law

inconsistent with the federal constitution is permissible,

particularly where the state law interpretation violates the

most fundamental rights guaranteed by the United States

Constitution. :

23

Clearly the decision of the Supreme Court of Nevada in

the present case, and its earlier administrative exception

decisions, which hold that state law may limit or remove

rights and powers reserved by the people and protected by

the federal constitution is in conflict with this Court’s

decision in Cuyahoga and other cases.

CONCLUSION

The core political speech of the voters has been

silenced and their rights and powers of popular sovereignty

have been crippled by the holding of the Supreme Court of

Nevada in the present case.

“_.. the assertion that the City of Boulder City might

be harmed if its voters wish to choose a new course of

action, and that such speculative and distant harm

comprises grounds to deny its citizens the right to vote,

is palpably offensive. It holds that the city as an entity

unto itself has protectable interests adverse to its own

citizens sufficient to silence their voice concerning how

their government shall be run. It turns our theory of

government on its head.” Appellants’ Opening Brief,

pp 28.

Petitioners submit to this Honorable Court that this

action by the Supreme Court of Nevada violates

Petitioners’ federal constitutional rights, and that Nevada

and other state supreme courts have decided the question

“in ways that conflict with relevant decisions of this Court.

Because these violations and conflicts may only be

resolved by the action of this Court, Petitioners pray that a

writ be granted.

Respectfully submitted,

Jason J. Bach

The Bach Law Firm, LLC

Nevada Bar No. 7984

2620 Regatta Drive, Suite 102

Las Vegas, Nevada 89128

702-925-8787

Counsel of Record for Petitioners

Travis Chandler

Nevada Bar No. 8778

1489 West Warm Springs Road, Suite 110

Henderson, Nevada 89014

702-966-8237

December 7, 2006

APPENDIX

Page

Nevada Supreme Court Rattner v. Boulder City

Ondior of REONOS | io oc ackccesnctvexssess App. 1

Nevada 8th Judicial District Court

Boulder City v. Rattner Order Granting Declaratory,

Injunctive and Extraordinary Relief ....... App. 12

Citizen Sponsored Initiative Amendment to

Preserve the Eldorado Valley ............. App. 18

Citizen Sponsored Initiative Amendment to

Sell the Eldorado Valley .......cccccceees App. 19

App. 1

Nevada Supreme Court

Rattner v. Boulder City

Order of Affirmance

IN THE SUPREME COURT OF THE

STATE OF NEVADA

No. 47795

Filed September 8, 2006

SHERMAN RATTNER; NANCY NOLETTE;

FRANK L. FISHER; LINDA

ROBERTSHAW; DON L. SHETTEL, JR.;

AND DOLORES GABAY,

Appellants, vs.

THE CITY OF BOULDER CITY AND COUNTY

OF CLARK,

Respondents.

ORDER OF AFFIRMANCE

This is an appeal from a district court judgment in

a ballot initiative action. Eighth Judicial District Court,

Clark County; Kathy A. Hardcastle, Judge.

The underlying action concerns approximately

107,412 acres of land in the Eldorado Valley, in the

southwest portion of Boulder City. In 1995, respondent

City of Boulder City acquired the Eldorado Valley land

from the Colorado River Commission of Nevada.

Thereafter, Boulder City dedicated to respondent Clark

- County an easement on approximately 85,000 acres of the

App. 2

land for an endangered species preserve.

To force Boulder City to either sell or preserve the

Eldorado Valley land, appellants, six Boulder City

residents comprising the Petitioner’s Committee, filed with

the Boulder City clerk six “Affidavit[s] of Petitioner’s

Committee for Purpose of Initiative,” requesting to place

the ensuing initiative petitions on Boulder City’s general

election ballot. Thereafter, the Petitioner’s Committee

collected signatures on four of these petitions.

Two petitions, the so-called sell initiatives, propose

that Boulder City’s charter be amended or that an

ordinance be enacted to sell the Eldorado Valley land (.e.,

one sell initiative proposes to amend Boulder City’s

charter, while the other proposes to enact an ordinance).

The other two petitions, the so-called preserve initiatives,

propose that Boulder City’s charter be amended or that an

ordinance be enacted to preserve the Eldorado Valley land

in perpetuity.

The Petitioner’s Committee collected the requisite

number of signatures on all four initiative petitions,

submitting them to the Boulder City clerk for validation.

Before the clerk determined that sufficient signatures had

been gathered, Boulder City instituted the underlying

action seeking declaratory, injunctive, and extraordinary

relief, to prevent the clerk from placing the initiative

petitions on the ballot. The clerk subsequently validated

the petitions. Thereafter, Boulder City filed a motion for

“Declaratory Order, Injunction, and Writ of Mandamus or

App. 3

Prohibition.” The Petitioner’s Committee opposed the

motion and moved for summary judgment. Meanwhile,

respondent Clark County, based on its easement on the

Eldorado Valley land, moved to intervene.

The district court granted Boulder City’s and Clark

County’s motions and denied summary judgment to the

Petitioner’s Committee. In particular, the district court’s

order declared the sell and preserve initiatives invalid, and

granted Boulder City injunctive and extraordinary relief

prohibiting the initiatives from being placed on the ballot.

In this, the district court reasoned that the initiatives

concerned administrative acts not within the electorate’s

initiative power. The Petitioner’s Committee has appealed.

An initiative or referendum is subject to a pre-

election challenge based on the threshold constitutional

requirement that it propose only legislation.’ Specifically,

in Garvin v_ District Court, we reaffirmed that “the

initiative and referendum powers reserved to the people,

although broad, are limited to legislation and do not extend

to administrative matters.”? Garvin also reiterated the test

' Garvin v. Dist. Ct., 118 Nev. 749, 766, 59 P.3d 1180, 1191

(2002).

* Id. at 751, 59 P.3d at 1181. The Petitioner’s Committee

maintains that limiting the electorate’s initiative power to legislative acts

violates the Nevada and United States Constitutions. With respect to the

United States Constitution, the Petitioner’s Committee cites the United

States Supreme Court’s decision in Cuyahoga Falls v. Buckeye

Community Hope Foundation, 538 U.S. 188 (2003). This decision,

however, simply provides that, “as a matter of federal constitutional law,”

App. 4

adopted in Forman v. Eagle Thrifty Drugs & Markets for

distinguishing between legislative and administrative

measures:

“An ordinance originating or enacting a

permanent law or laying down a rule of

conduct or course of policy for the

guidance of the citizens or their officers

and agents is purely legislative in

character, and referable, but an

ordinance which simply puts into

execution previously-declared policies,

or previously-enacted laws, is

administrative or executive in character,

and not referable.”

the United States Supreme Court has rejected the distinction between

legislative and administrative initiatives and referenda. Id. at 199. This

decision, moreover, concurrently acknowledges that the distinction may

exist as a matter of state law. Id.

With respect to the Nevada Constitution, article 19, section four

pertinently states that “[t]he initiative and referendum powers .. . are...

reserved to the registered voters of each county and each municipality as

to all local, special and municipal legislation of every kind.” The Nevada

Constitution thus “{b]y its plain terms” limits the electorate’s initiative

power to legislative matters. See Garvin, 118 Nev. at 763, 59 P.3d at

1189. Accordingly, the Petitioner’s Committee’s arguments are

unavailing.

3 89 Nev. 533, 537, 516 P.2d 1234, 1236 (1973), overruled on

other grounds by Garvin, 118 Nev. 749, 755, 59 P.3d 1180, 1184

(quoting Denman v. Quin, 116 S.W.2d 783, 786 (Tex. App. 1938)).

App. 5

Indeed, as this court has clarified, “regardless

whether an initiative proposes enactment of a new statute

or ordinance, or a new provision in a constitution or city

charter, or an amendment to any of these types of laws, it

must propose policy—it may not dictate administrative

details.”* This requirement prevents the electorate from

destroying or impeding the efficient administration of

governmental affairs.°

On appeal, the Petitioner’s Committee argues that

the sell and preserve initiatives propose legislative acts

because, together, the initiatives present three “clear and

profound” policy choices: 1) to prevent virtually all

development in the Eldorado Valley land; 2) to vastly

expand development in the Eldorado Valley land, beyond

the “present nominal policy of limiting development;” and

4 Citizens for Train Trench Vote v. Reno, 118 Nev. 574, 583, 53.

P.3d 387, 392 (2002)

> See Glover v. Concerned Citizens for Fuii Park, 118 Nev.

488, 495, 50 P.3d 546, 550 (2002); accord Hopping v. Council of City

of Richmond, 150 P. 977, 979 (Cal 1915):

To allow [the initiative power] to be invoked to annul or

delay executive conduct would destroy the efficiency

necessary to the successful administration of the business

affairs of a city. In many cases it would entirely prevent the

exercise of the executive power necessary to carry out the

acts determined upon by the legislative department. In the

absence of a very clear declaration to the contrary, it must

be presumed that the power of [initiative] was intended to

apply solely to the legislative powers of the city.

App. 6

3) to “permit the [Boulder City] council to continue the

present haphazard, ad hoc course they have been

following.”

As the Petitioner’s Committee’s initiatives

concern only a single parcel, however, the initiatives are

necessarily administrat?ve. We have consistently held that

an initiative dictating the use or non-use of specific

municipal property fails to contain the policy elements

necessary to bring the proposal within the electorate’s

initiative power.° In particular, in Garvin, we overruled

Forman to the extent that it suggested city zoning

processes were never subject to the electorate’s initiative

powers.’ In so doing, however, we noted that an initiative

creating a general land-use policy (establishing a

commercial buffer zone around elementary and junior high

schools) seemed legislative, but the land- specific

referendum at issue in Forman (merely rezoning a single

® See Garvin, 118 Nev. at 755, 59 P.3d at 1184 (recognizing

that an initiative proposing a general zoning policy seemed legislative,

while a land-specific zoning referendum seemed administrative), Fuji

Park, 118 Nev. at 495, 50 P.3d at 550 (2002) (concluding that an

initiative calling for the preservation of specific city-owned property, as

opposed to setting forth a new course of policy regarding the manner in

which the city made real property decisions, was administrative); Train

Trench, 118 Nev. at 583-84, 53 P.3d at 393 (concluding that an initiative

prohibiting the construction of a particular public works project, rather

than establishing a course of policy regarding public works projects, was

administrative).

7 See Garvin, 118 Nev. at 765, 59 P.3d 1190.

App. 7

parcel owned by one entity) seemed administrative.’

Garvin likewise reaffirmed Glover v. Concerned Citizens

for Fuji Park’s’? and Citizens for Train Trench Vote v.

Reno’s’” conclusions that land-specific measures are

administrative and thus excepted from the electorate’s

initiative power.'' Consequently, we have expressly left

intact the prohibition on administrative, land-specific acts.

The Petitioner’s Committee’s sell initiatives call for

the transfer and sale of a specific parcel of municipal land,

albeit a substantial one. Therefore, the initiatives do not set

forth a new course of policy to guide citizens or their

officers and agents regarding the way in which Boulder

City makes land use decisions. Put differently, though the

sell initiatives dictate Boulder City’s approach as regards

the Eldorado Valley land, they do not set a concrete course

of policy to guide Boulder City’s land use decisions

generally.

And the sell initiatives dictate transitory,

administrative details concerning the proposed land sale,

specifically directing the following: that the city settle all

claims concerning the land; that the city transfer the land,

® Id. at 755, 59 P.3d at 1184.

* 118 Nev. 488, 50 P.3d 546.

10 118 Nev. 574, 53 P.3d 387.

'l See Garvin, 118 Nev. at 765 nn. 71-72, 59 P.3d at -

1190-91, nn 71-72.

App. 8

for $1.00, to a trust; that a non-profit, tax-exempt trust be

established to receive the land; that the Petitioner’s

Committee serve as trustees; that the city cooperate with

the Petitioner’s Committee to execute any documents and

to make any zoning changes or any deannexations, as

needed; that the land be sold for the highest value; that 90

percent of the resulting proceeds be distributed to certain

Boulder City residents; and that 10 percent of the resulting

proceeds be allocated to the trustees, Boulder City debt,

education, and the community, among other things. The

significant time and resources implicated by implementing

these administrative details illuminates the policy

underlying the administrative act exception: to prevent the

electorate from destroying or impeding the efficient

administration of governmental affairs.'* Accordingly,

because the sell initiatives concern specific municipal

property, fail to define’ a concrete course of policy

regarding Boulder City’s land use decisions and, moreover,

set forth the administrative details with respect to the sale

of this specific municipal property, the sell initiatives

propose measures not subject to the electorate’s initiative

powers."?

12 See Fuji Park, 118 Nev. at 495, 50 P.3d at 550.

'3 The Petitioner’s Committee, citing the Texas Court of

Appeals decision in Humphrey _v. Balli, 61 S.W.3d 519 (Tex. App.

2001), argues that land sales are legislative acts. But Humphrey is

factually distinguishable from the underlying matter and not binding

authority on this court. As discussed, this court has consistently concluded

that initiatives concerning a city’s decisions with respect to particular

municipal property do not constitute legislative measures. See Fuji Park,

118 Nev. at 495, 50 P.3d at 550; Train Trench, 118 Nev. 583-84, 53 P.3d

App. 9

The preserve initiatives likewise propose measures _

not subject to the electorate’s initiative power. Specifically,

the preserve initiatives attempt to preserve the Eldorado

Valley land in perpetuity, prohibiting Boulder City from

acting to “sell, lease, or otherwise dispose” of the land and

directing Boulder City to preserve the Eldorado Valley

land exclusively for a desert tortoise preserve, public

recreation land, and solar power peaking stations. These

restrictions mirror a recital from the Eldorado Valley land

sale contract entered into when Boulder City acquired the

land from the Colorado River Commission.'* But an

initiative petition calling for the preservation of one

specific municipal parcel does not meaningfully set forth

a new course of policy to guide citizens or their officers

and agents regarding the way in which a municipality

makes decisions about its real property.’ in light of this

at 393.

'* This recital notwithstanding, under section 144(1) of Boulder

City’s charter, the Eldorado Valley Land currently may also be used for

“utility lines, easements, roads, rights-of-way, communication towers,

antennas and similar governmental uses and for existing lease and lease

options.” Under section 144(2), moreover, the Eldorado Valley land, with

voter approval, may be used for any “residential, commercial or industrial

development. .. [or any use] other than the uses listed in section 1.”

'S See Fuji Park. 118 Nev. at 495, 50 P3d at 550. We note that,

with respect to the conservation easement—nearly four-fifths of the

Eldorado Valley land—the preserve initiatives propose nothing new. The

conservation easement grant already limits use of the land burdened by

the easement in the same way that the preserve initiatives propose. And as

discussed, an initiative must change policy, proposing a new course to

App. 10

rule set forth in Fuji Park and reaffirmed in Garvin, the

preserve initiatives fail to implement a new permanent

course of policy to guide Boulder City officials’ future

land use decisions.'® Thus, the Petitioner’s Committee’s

preserve initiatives also concern matters not within the

electorate’s initiative power."”

Accordingly, because we conclude, as a threshold

matter, that neither the sell nor preserve initiatives propose

guide municipal decision-making. Initiatives must not simply reaffirm

existing policy.

as See Garvin, 118 Nev. at 765 n.71, 59 P.3d at 1190 n.71; Fuji

Park, 118 Nev. at 495, 50 P.3d at 550.

'7 The Petitioner’s Committee asserts that, if an initiative

concerns legislative and administrative acts, as the Petitioner’s Committee

contends the sell and preserve initiatives, at the very least, do, the

legislative aspect should prevail and, in and of itself, warrants placement

of the initiative on the ballot. The Petitioner’s Committee cites Garvin in

support of this argument: “the initiative power should be broadly

construed with all doubts resolved in its favor.” 118 Nev. at 760, 59 P.3d

at 1187 (citing Associated Home Builders v. City of Livermore, 557

- P.2d 473, 480 (Cal. 1976)). This statement in Garvin, however, was not

establishing an analytical framework to determine an initiative’s threshold

validity as the Petitioner’s Committee suggests, but rather, was describing

the analysis underlying a decision of the California Supreme Court. Id.

And to the extent that Garvin may be interpreted to adopt this approach

for determining an initiative’s threshold validity, Garvin concurrently

reaffirmed the rule in Fuji Park and Train Trench —that initiatives

concerning specific municipal land do not constitute legislative acts.

Therefore, even broadly construing the electorate’s initiative power does

not alter the analysis. Garvin, 118 Nev. at 765 nn.71-72, 59 P.3d at

1190-91 nn.71-72.

App. 11

measures subject to the electorate’s initiative power, we

affirm the district court’s judgment.

It is so ORDERED.

oo

s/Rose, C.J.

Rose

s/Becker, J. s/Maupin, J.

Becker Maupin

s/Gibbons, J. s/Douglas, J.

Gibbons Douglas

s/Hardesty, J. s/Parraguire, J.

Hardesty Parraguire

cc: Hon. Kathy A. Hardcastle, District Judge

Travis Chandler

Boulder City Attorney

Clark County District Attorney David J. Roger/Civil

Division

Lionel Sawyer & Collins/Las Vegas

Clark County Clerk

App. 12

Nevada 8th Judicial District Court

Boulder City v. Rattner

Order Granting Declaratory, Injunctive and

Extraordinary Relief

Case No. A523265

Filed July 20, 2006

DISTRICF COURT CLARK COUNTY, NEVADA

The City of Boulder City,

Plaintiff

v.

Sherman Rattner; Nancy Nolette; Frank L.

Fisher; Linda Robertshaw; Don L. Shettel,

Jr.; Dolores Gabay,

Defendants

Case No. A523265

ORDER GRANTING DECLARATORY,

INJUNCTIVE AND EXTRAORDINARY RELIEF

ORDER GRANTING DECLARATORY,

INJUNCTIVE

AND EXTRAORDINARY RELIEF

The City of Boulder City’s Motion for Declaratory

Order, Injunction and Writ of Mandamus or Prohibition

came on for hearing on July 7, 2006 at 9:00 A.M., at which

time the Court also heard the Defendants’ opposition and

counter motion for summary judgment and proposed

Intervener Clark County’s Motion to Intervene. The Court,

having considered the evidence presented in the form of

App. 13

exhibits and testimony, the arguments of the parties, and

good cause otherwise appearing, hereby finds and

concludes as follows:

1. The Defendants’ right to enact municipal legislation by

initiative petition is a fundamental right guaranteed by

the United States and Nevada Constitutions; and

2. Notwithstanding the foregoing, the Defendants’ right to

enact legislation by initiative petition is limited to

legislative matters, and does not extend to

administrative matters entrusted to the City Council of

Boulder City; and

3. The Defendants have submitted initiative petitions

(hereby referred to as the “sell” initiatives) to amend the

Charter of Boulder City (Exhibits A and B to Plaintiff's

Motion) and to enact-ordinances (Exhibits C and D to

Plaintiff’s Motion) which, inter alia, compel the City of

Boulder City to sell approximately 107,000 acres

referred to as the land transfer area (“Land”), including

an 85,000 acre conservation easement, to a yet-

to-be-formed trust governed by Defendants for the sum

of $1. The initiatives also empower the trust to re-zone

the Land, de-annex the Land from Boulder City, execute

documents relative to the Land, and sell the Land for the

“highest value”, with the proceeds of the sale to be paid

into the trust to be dispersed by the trust; and

4. The Defendants have submitted initiative petitions to

amend the Charter of Boulder City (Exhibit E to

App. 14

Plaintiff's Motion) and enact ordinances (Exhibit F to

Plaintiff's Motion) which, inter alia, compel the City of

Boulder City to take specific actions to preserve the

Land, to the exclusion of existing, current and

previously approved Land uses, leases and other

property rights (hereby referred to as the “preserve”

initiatives); and

5. Based upon the evidence presented, the “sell” initiatives

are administrative in nature, rather than legislative,

based upon the test adopted by the Nevada Supreme

Court in Garvin v. Ninth Judicial District Court, 59 P.3d

1180 (Nev. 2003) and Forman v. Eagle Thrifty Drug &

Market, 516 P.2d 1234 (Nev. 1973); and

6. Based upon the evidence presented, the “preserve”

initiatives are also administrative in nature, rather than

legislative, based upon the tests adopted by the Nevada

Supreme Court in Garvin, supra, and Forman, supra, and

7. Substantial harm will result to the City of Boulder City,

the citizens ofBoulder City, and the citizens of Clark

County if the “sell” and/or “preserve” initiatives are

enacted; and

8. No harm will result to the Defendants, Boulder City, the

citizens of Boulder City, and the citizens of Clark

County if the “sell” and/or “preserve” initiatives are not

enacted; and

9. The City of Boulder City has shown by appropriate

App. 15

quanta and quality of evidence that the “sell” and/or

“preserve” initiatives are administrative in nature, and

are thereby an invalid exercise of the initiative process,

and Boulder City is therefore entitled to a declaratory

order pursuant to NRS 30.040 finding the initiatives

invalid; and

10. The City of Boulder Cty lacks a plain, speedy and

adequate remedy in the ordinary course of law to

address invalid initiative petitions, and is therefore

entitled to a writ or injunction against placing the

initiatives on the ballot; and

11. The City of Boulder City is not legally required to

place invalid initiatives on the ballot of the next general

election, and is entitled to a writ and/or injunction

preventing such placement on the ballot; and

12. The Defendants’ defenses, counterclaims and

countermotions lack factual and legal merit; and

13. Clark County is entitled to intervene as a matter of

right.

NOW, THEREFORE, based upon the foregoing findings

and conclusions, the Court hereby orders, adjudges and

decrees that:

1. Pursuant to NRS 30.040, the "sell" initiatives are hereby

declared invalid on the basis that they are

App. 16

administrative, rather than legislative; and

2. Pursuant to NRS 30.040, the "preserve" initiatives are

hereby declared invalid on the basis that they are

administrative, rather than legislative; and

3. Pursuant to NRS 33.010, NRS 34.170 and NRS 34.320,

the City of Boulder City is hereby enjoined and

prohibited from placing the "sell" and "preserve"

initiatives on the ballot of Boulder City's next general

election;

4. The countermotion(s) of the Defendants are hereby

denied as being without merit or basis;

5. Clark County's Motion to Intervene as a Plaintiff is

granted; and

6. This Order is a final determination and judgment for all

pending matters pursuant to NRCP 54.

DATED: this 20th day of July 2006.

s/Kathy A. Hardcastle

District Court Judge

Submitted By:

LIONEL SAWYER & COLLINS

App. 17

By: s/Paul E Larsen

Paul E. Larsen

Nevada Bar No. 3756

1700 Bank of America Plaza

300 South Fourth Street

Las Vegas, Nevada 89101

Attorneys for Plaintiff, Boulder City

App. 18

Citizen Sponsored Initiative Amendment to

Preserve the Eldorado Valley

AN AMENDMENT OF THE BOULDER CITY

CHARTER TO PRESERVE THE ELDORADO

VALLEY EXCLUSIVELY FOR DEVELOPMENT

ONLY AS A "DESERT TORTOISE PRESERVE,

PUBLIC RECREATION LAND AND AS A

POSSIBLE SITE FOR A SOLAR POWER PEAKING

STATION"

Boulder City shall strictly adhere to the intent of the July

9, 1995 Eldorado Valley Transfer Agreement and recitals

to preserve the entire 107,412.24 acres known as the

"Transfer Area" for development only as a "desert tortoise

preserve, public recreation land and as a possible site for

a solar power peaking station", and not sell, lease or

otherwise dispose of any of the land for any other purpose

whatsoever in perpetuity.

App. 19

Citizen Sponsored Initiative Amendment to

Sell the Eldorado Valley

AN AMENDMENT OF BOULDER CITY CHARTER

TO SELL THE ELDORADO VALLEY FOR THE

BENEFIT OF THE RESIDENTS-OF-RECORD AS

OF MARCH 31, 2006

SECTION 1: In recognition of the Legislative Declaration

found in NRS 271.020 and such other local, state, and

federal legislation as may apply for the equal protection of

all of the Residents-of-Record as of March 31, 2006 of

Boulder City and as a result of the existing and pending

large population growth and intense residential,

commercial and industrial development in the incorporated

and unincorporated areas surrounding Boulder City there

is a need to provide for the health, safety, prosperity,

security and general welfare of each individual existing

inhabitant of Boulder City while ensuing the need for

extensive local improvements in an orderly manner within

the Eldorado Valley.

SECTION 2: Now, therefore, as provided for in Article

XV of the Boulder City Charter and elsewhere in order to

sell or dispose of land, distribute money, and protect

Boulder City and provide fairly for the needs of current

residents while settling any claims that might interfere with

the City's future well being, Boulder City for settlement of

all claims and value received of one dollar ($1.00), through

a non-profit tax-exempt Trust, established and exclusively

App. 20

and fully empowered for the benefit of the

Residents-of-Record as of March 31, 2006, and shall sell

or otherwise dispose of altof the 107,412.24 acres known

as the “Transfer Area" in the Eldorado Valley by whatever

means determined by the Trust as necessary for the highest

value and then distribute from the Trust not tess then 90%

of total proceeds on an equal basis directly to those

Residents-of-Record The remaining 10% shall be used

from the Trust to pay toward City debts; a permanent fund

for other needs of the City; a by-pass and buffer zone;

protecting neighboring communities and habitats; local

education; and administering the Trust for the benefit of

the members of the Trust.

SECTION 3: To maximize benefit to the Trust members,

the City and Trust members shall take all actions, including

but not limited to the execution of documents, changes in

zoning, or de-annexations as needed to sell the Transfer

Area at the highest value and implement the purpose of the

Trust and the Amendment.

SECTION 4: For the purpose of managing the Trust the

sponsors of the Ballot Measure by which this Amendment

is approved will serve as Interim Trustees until the next

regularly scheduled municipal election at which time not

less then 7 Trustees elected for a 4 year term from the

among the members of the Trust shall be selected to serve

as Trustees.

SECTION 5: This Amendment and the measures contained

therein shall be liberally construed as being for the purpose

App. 21

of selling all or part of the 107,412.24 acres of land

referred to as the "Transfer Area" in the Eldorado Valley

acquired through the July 9, 1995 "Contract Between The

State Of Nevada And The City Of Boulder City For The

Sale Of Land In The Eldorado Valley" for the highest

value and distribute not less then 90% of the proceeds on

an equal basis directly to the Residents-of Record of

Boulder City as of March 31,2006.

SECTION 6: In the event any portion of this Amendment

and the measures contained therein are deemed to be

unenforceable or insufficient to the purpose of the

Amendment it will not affect the validity of the rest of the

Amendment, which may be amended, modified or

otherwise changed as needed to fulfill the purpose of the

Amendment as described in Section 5.