Discussion: 9 comments so far...

1. By Pj_Perez

   3/4/09 at 3:50 p.m.

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   It's totally not legal because ... because ... OMG I SAID SO!!

   Lawyers suck. City lawyers suck. Jon, will you endorse my run for mayor and/or city council in 2011? Thanks.

2. By OldEnvironmentalLawyer

   3/5/09 at 12:19 a.m.

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   Comment Part 1:

   OK, I've actually litigated this stuff outside of Nevada, but as shown in the City Attorney's memo, because Nevada does not have a lot of case law on referenda and initiatives, they have to borrow reasoning from courts in other states.

   A referendum is a vote whether or not to overturn or invalidate an ordinance (i.e. law) adopted by the City Council. Most states have a very short time limit, after an ordinance is adopted, for voters to referend the ordinance.
   
   In this case, the City Attorney's memo says Culinary's referendum seeks to repeal Ordinance 5830.

   What the City Attorney doesn't tell the reader of his memo is what Ordinance 5830 says, and when it was adopted. This is where the City Attorney's analysis is very weak because of that omission. Weak writing can mean playing hide the ball, or weak writing can simply be poor quality lawyering. Taking the two questions in reverse order, given the fact that the memo says redevelopment bonds have already been issued, it's likely that the statute of limitations has long since passed on referending Ordinance 5830. If the City Attorney can prove that point in a lawsuit by Culinary, that will kill the referendum. Assuming the statute of limitations has not run, then you really have to know what Ordinance 5830 says to determine whether it can be put up for a vote in a referendum. In theory any ordinance (law) can be referended, while a resolution or administrative policy cannot be. However, if the text of Ordinance 5830 establishes administrative policies, then a court could determine that it cannot be repealed by a referendum. Again, when a City Attorney does a piss poor job in writing the foundation for an analysis (e.g. what does the ordinance say) that's when I am suspicious.

3. By Lenny_V

   3/5/09 at 12:30 a.m.

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   Like F it is.

4. By OldEnvironmentalLawyer

   3/5/09 at 12:34 a.m.

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   Comment Part 2:

   The City Attorney's discussion of the contracts clause, citing U.S. Supreme Court cases, is substantively correct, as is his conclusion that a referendum cannot retroactively repeal a law which authorized the issuance of bonds which have already been funded.

   In contrast with his vague and sloppy discussion on Culinary's Referendum on Ordinance 5830, the City Attorney has done a pretty good job explaining why the Initiative proposed by Culinary is unlawful. The City Attorney's conclusion is 100% consistent with California and other states' case law on the same issues, so I am not surprised by his conclusions.

   Initiatives are ordinances (law), whereas decisions by cities about (a) how to spend its money, (b) what city buildings to build, (c) where to put city buildings, and (d) when to lease property all are considered "administrative not legislative in nature".

   Nevada's law authorizing initiatives is clear that laws/ordinances can be adopted by initiative. Most state appellate courts around the country construe such a provision to mean that administrative policies or decisions cannot be made by initiative.

   The terms of the Culinary Initiative as quoted by the City Attorney does fit within the examples of administrative actions in the two Nevada Supreme Court cases cited which make the administrative/legislative distinction. As a result, I think the City Attorney is correct in his analysis of the unlawfulness of the Culinary Initiative.

   In fact, I litigated a case in California where a bunch of public spirited citizens in a small city used an initiative to try to stop their City Council from doing the same sorts of things Culinary wants to stop. The trial judge shot down their initiative for the same reason, i.e. the types of decisions the Californians tried to make in their initiative were administrative in nature.

   The City Attorney is also correct that the City can refuse to put patently unlawful initiatives and referenda on the ballot. The case law from most states throughout the U.S. says the same thing.

5. By OldEnvironmentalLawyer

   3/5/09 at 12:44 a.m.

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   Comment Part 3:

   The one amusing point about the City Attorney's analysis of Nevada initiative law is his discussion of a Nevada Supreme Court decision stating that zoning of specific properties is administrative rather than legislative. Compared to the case law in the rest of the U.S.A. the Nevada Supreme Court is 180 degrees wrong on that point. Outside of Nevada, zoning is considered legislative because it is adopted as a zoning ordinance. That's why I never want to practice law in Nevada. Its only appellate court often makes decisions which are totally inconsistent with established case law in the other 49 states. Example: In most other states, Steve Sisolak would not have won his multi-million dollar claim against the county for down zoning his property near the airport, because under U.S. Supreme Court case law, and other states' case law following the Supremes, a downzoning or height restriction is not a taking. It's often hard to figure out if Nevada's appellate court judges are out of tune with the rest of the appellate judges in the country or simply corrupt!

   The bottom line is that Culinary should have had a Nevada lawyer who is experienced in Referendum and Initiative litigation take a look at the wording of their petitions before Culinary wasted time and money getting all the signatures. A lawyer with that type of experience would have told them to "forget it".

   It IS possible for Culinary to referend City of Las Vegas ordinances in a timely way, and to write initiatives containing ordinances (rather than administrative policies) which will screw up the City in achieving its other goals. The Culinary simply need someone who knows what he or she is doing to do their thinking and their writing of initiatives and referenda.

   At this point, if the Culinary wants some "revenge" for the City rejecting their referendum and initiative, the intelligent thing to do is to carefully write and get signatures on a statewide initiative petition which will amend the state's basic initiative law to allow initiatives on both legislative and administrative matters. If such a statewide initiative became law, Culinary then could lawfully meddle in the City's "administrative" policies which is what their current initiative and referendum apparently seeks to do.

6. By NLVResident

   3/5/09 at 4:19 a.m.

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   While I appreciate the analyses above, my only thought is this: nothing is unconstitutional until the Supreme Court rules it is. And I am so tired of our elected officials spending money to fight a referendum or petition. Now, based on the above analyses, this may be a case where it is beneficial to fight it because of possible impacts of previously-issued bonds. But, let the voters speak. At least then the decision will be from the voters of the City of Las Vegas and not just members of Steve Ross' trade association or the union. If the Mayor thinks his constituents support the new City Hall, why is he so afraid of putting the issue to a vote?

7. By travischandler

   3/5/09 at 6:46 a.m.

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   The City Attorney is wrong on two accounts. There is mandatory authority in Nevada Supreme Court case law that an initiative or referendum may be removed from the ballot prior to the election only if it is legally insufficient; and the only grounds for legal insufficiency they have consistently upheld is the administrative-legislative distinction, which they have admitted is vague. Other grounds for challenging an initiative or referendum are fact intensive, that is, on a case by case basis. That is why the NSC wants the courts to have plenty of time to decide the issue on most grounds: after the election.

   Secondly, the US Supreme Court has expressly disapproved the administrative-legislative distinction in a couple of decisions the state courts routinely ignore.

   Moreover, because the Nevada Supreme Court itself does not challenge all ballot question before an election, some may make it through. In other words, it tacitly admits there is nothing wrong with letting the voters speak to it first, and then throwing it out after the election, under a much wider menu of legal theories.

8. By OldEnvironmentalLawyer

   3/5/09 at 11:20 a.m.

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   In response NLV Resident's comment: I agree that as a matter of political policy 'the people should be allowed to speak'. The Las Vegas City Council could have made a political decision to put a legally defective initiative and referendum on the ballot, saying that they will challenge it after the election. That way, they would not be seen as intentionally frustrating the exercise of the initiative/referendum power and look better politically NOW. However, after such an initiative and/or referendum passed, when they took it to court they would also look even WORSE politically, because they would look like the defied the vote of the voters. As a result, the cold political analysis is that it's better for them to kill off the initiative/referendum now because that decision will soon be forgotten by the average voter. A post election invalidating of a voter approved initiative/referendum, at the request of the City Council, would be less easily forgotten by the voters.

   In response to Travis Chandler's comment that:
   "There is mandatory authority in Nevada Supreme Court case law that an initiative or referendum may be removed from the ballot prior to the election only if it is legally insufficient" Interesting comment. It essentially illustrates that the City Council has the power to keep an initiative/referendum off the ballot, and that the Nevada courts have the power to validate that decision, if the decision is challenged by initiative/referendum proponents. As a result, the unpleasant reality is that if a city council decides to fight with initiative/referendum proponents pre-election, the proponents are forced to defend their position. The City has said "Put up or shut up". That's what Culinary will have to do. Life is never easy for "public interest lawyers".

9. By hss46

   3/5/09 at 2:48 p.m.

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   Let me chime in with one more point. While I agree that the petition is defective legally as an attempt to close the barn door after the horse has gone, the real remedy in a representative democracy isn't to try to shift full legislative power to a referendum of voters but rather the other use of the ballot box: i.e. vote the a/h's out!!!

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