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September 2, 2014

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City-union legal debate: Are issues fit for voters?

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Courtesy OF KLAS-tv

Brad Jerbic, left, city attorney for Las Vegas, and Richard McCracken, attorney for the Culinary Union, appear Friday on “Face to Face With Jon Ralston.”

The petitioners gathered the requisite numbers of signatures, which were certified as valid. So why shouldn’t Las Vegans be allowed to cast ballots for or against the two measures sponsored by the Culinary Union?

Several relatively arcane legal issues are at play, including existing contract rights and an argument over what constitutes a legislative body.

But it boils down to this: The city is arguing that the ballot issues in question are unconstitutional — just as they would be, say, if petitioners were demanding the city adopt an official religion — so voters should not have the right to adopt them into law.

The union, meanwhile, is ready to argue against each of the city’s claims on the merits — but the union’s attorney says that for now, the case shouldn’t even get that far.

A judge should order the City Council to add the measures to the ballot, Richard McCracken maintains, because the state Supreme Court has clearly ruled that “voters must be given the chance to vote” before the substance of a ballot measure can be challenged.

The ballot measures in question would mandate voter approval for future redevelopment agency projects and stop the controversial new city hall project.

The two sides’ lead attorneys — McCracken and Las Vegas City Attorney Brad Jerbic — outlined their cases Friday on “Face to Face With Jon Ralston,” which airs on Cox cable channel 19.

“Voters get to consider legal opinions. They don’t get to consider illegal opinions,” Jerbic said.

Jerbic is relying in part on a 1995 opinion by then-state Attorney General Frankie Sue Del Papa, which stemmed from a situation much like the one in question. A neighborhood group had filed a referendum petition attempting to repeal the redevelopment agency, and had obtained enough qualified signatures for the ballot.

Yet Del Papa then agreed with the city that voters should not get to have their say.

The 1995 referendum was unconstitutional because it would have impaired existing contracts between the redevelopment agency and its bondholders, Del Papa found. Jerbic is making the same argument now — claiming that about $80 million in obligations to bondholders are in jeopardy if the union’s proposal were to pass.

Del Papa also found that city’s adoption of the redevelopment plan was an “administrative” action and not “legislative,” and therefore could not be subject to a referendum — again, almost identical to the argument Jerbic is making now.

McCracken, who said the Culinary will file its lawsuit Monday in District Court, argued that the city is using a “kitchen sink” legal strategy. The city is making arguments, he said, not because they hold merit but because the city is politically desperate to keep its city hall plans and related redevelopment projects on course.

He argued that in a 2003 Nevada Supreme Court case, justices ruled that all ballot measures with the proper signatures — even those where the potential unconstitutionality was “palpable” — must be voted on before any legal challenges could be made.

McCracken also said the city’s arguments regarding existing contracts are flawed because the union made sure to include language in both ballot measures that allows the city to raise money to pay off its current bond debts.

Both sides will be enlisting allies to file legal arguments to bolster their cases. The city is sure to receive help from the Downtown Las Vegas Alliance, which is made up of the biggest downtown casinos and developers. The construction unions are also pushing hard for the city hall project because of the work it would provide. Jerbic told the Sun the city is in the process of lining up other powerful allies for the court battle, but he declined to identify them.

The Culinary Union appears to have found an ally in the American Civil Liberties Union.

Allen Lichtenstein, general counsel of the ACLU of Nevada, said he was concerned that the city’s stance is based on politics rather than sound legal arguments.

“I’m not accusing anyone of bad faith, but there’s the potential for a conflict of interest here,” said Lichtenstein, whose group has beaten Jerbic’s office in several high-profile First Amendment cases. He said the ACLU is weighing whether to file a court brief on the Culinary’s behalf.

One independent observer, UNLV Boyd Law School professor Steve Johnson, said on Ralston’s television show that in a couple of the legal issues at play, case law appears to favor the city’s position. But he quickly added that the issues are complex, and that either side, ultimately, could emerge victorious.

“It’s murky,” he said.

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