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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1858%3A1. Public record. Not legal advice.