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November 28, 2014

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Boulder City’s lawsuit over ballot question to continue, judge rules

Boulder City's lawsuit against five citizens who circulated a petition for a ballot question for November's election will move forward after District Court Judge Jerome Tao ruled Thursday the defendants weren't immune from the city's litigation.

The city sued the petitioners Nov. 24 to challenge the legality of the ordinance, which requires the city to receive approval from voters before going into debt $1 million or more. It passed with 58 percent of the vote on Nov. 2.

Attorney Tracy Strickland, who, along with his wife, Linda Strickland, represented the petitioners, filed a motion to dismiss the lawsuit on Dec. 20. Linda Strickland is a Boulder City councilwoman.

Tracy Strickland said he plans to appeal the ruling to the Nevada Supreme Court.

The Stricklands argued Thursday that the city's litigation was an example of a SLAPP lawsuit, or strategic lawsuit against public participation, which aims to silence opposition through the judicial process, and asked for $9,660 from the city to cover their clients' attorney fees. Tracy Strickland argued that the petitioners were immune from the city's lawsuit because they were exercising their constitutional right to petition, a right that the anti-SLAPP statute is intended to protect.

After lengthy arguments from both sides, Tao sided with the city and ruled the case would continue.

In arguments, Tracy Strickland also warned that the city's action could have "a chilling effect" on Boulder City's citizens who wish to get involved with their local government. In his motion, Strickland commented on the "audacity" of the city's actions, noting that seven of the last eight citizen-sponsored ballot questions had been "legally attacked" by Boulder City Attorney Dave Olsen. At the hearing, he lamented that the question's sponsors "were sued for exercising their constitutional rights."

"Clearly the democratic process is under attack in Boulder City," Strickland said in his motion.

The five defendants -- James Douglas, Frank Fisher, Cynthia Harris, Daniel Jensen and Walt Rapp -- submitted sworn affidavits to the court, stating they would abstain or hesitate if asked to participate in the petition process again.

"We believed then, and still believe now, that it is, and was, our constitutional right to sponsor these three initiatives," Jensen said in a statement. He has been subject to three lawsuits for three petitions he sponsored for November's election.

The city tried but failed in September to stop a question from appearing on the ballot that would have limited Boulder City to owning one golf course. That measure ultimately failed at the ballot box. Another question, which would limit appointed members of the city's committees and commissions from serving more than 12 years, passed in November; the city filed a separate lawsuit on Nov. 24 to challenge the legality of that ordinance.

Arguments in that case will be heard in District Court on Friday.

"I am very concerned that, because of these lawsuits, Boulder City residents will no longer want to participate in the initiative process," Jensen continued. "I even question whether I, in the future, would be willing to circulate any initiative measures."

Douglas said he and his wife were "extremely upset and emotionally troubled" by the city's actions.

Paul Larsen, an attorney at Lionel, Sawyer and Collins, who represented Boulder City on behalf of Olsen, had asked the court to declare the ordinance unconstitutional, saying it would infringe on the city council's ability to make administrative decisions, such as on issues related to the city's budget. According to state law, ballot questions must be legislative, not administrative, in nature, he said.

Boulder City is currently working to resolve more than $95 million in debt, stemming from costs related to the Boulder Creek Golf Club and a new water line installed by the Southern Nevada Water Authority, among other issues.

At Thursday’s hearing, the Stricklands pointed to a Nevada statute they say could have been used to have the court review the ballot question without suing the petitioners. Tracy Strickland gave the example of the city of Mesquite, which recently took an approved ballot question to the Supreme Court to determine its legality.

Tao pressed Larsen to respond to Strickland's point. Larsen replied that he didn't know if Boulder City could have pursued that avenue, but countered that the city would not be obligated to do so. Tao agreed.

Larsen stressed that the purpose of the lawsuit was not punitive in nature.

"We are not punishing people. If you propose legislation, it's up to you to defend it," Larsen said. "That's how democracy works."

Tao expressed reservations about his ruling, but explained he was forced to reconcile two sections of Nevada law that seem to leave a "loophole," as he described it. In one section, which covers anti-SLAPP issues, it appears that citizens are immune from litigation if they supported the petition in good faith. In another section, as interpreted by the Nevada Supreme Court in a different case -- Nevadans for Nevada v. Beers -- a petition's sponsors can be named as defendants in a lawsuit as a means of challenging its legality. Tao said he felt compelled to follow the Supreme Court's lead.

He also noted a lack of case law upon which he could base a decision, as none of the cases cited by either side provided an identical precedent. When Tracy Strickland said he planned to appeal Tao's ruling to the Supreme Court, the judge said he would be glad for the state's highest court to clarify the apparent contradiction.

"I understand your concerns... Some of the things the city has done are very troubling to me as a citizen," Tao said, adding that he was "extremely concerned about a chilling effect."

The Stricklands had filed a motion in October to dismiss the lawsuit regarding the golf course question, also citing anti-SLAPP statutes. Judge Allan Earl ruled that the citizens' right to petition had not been violated by the city's lawsuit, as the city was not seeking any damages from the petitioners. The Stricklands appealed that decision to the Supreme Court, and the initial arguments are to be filed by March 11, Tracy Strickland said during Thursday's hearing.

After the meeting, Olsen said he was "very comfortable" with the court's decision, but repeated Larsen's point that he doesn't wish to punish the citizens. He also told the Sun that the city has paid Lionel, Sawyer and Collins more than $70,000 while pursuing the three lawsuits, the first of which was filed in July.

"An unconstitutional ordinance is an unconstitutional ordinance," said Olsen, who called the motion to dismiss a "smoke screen" that avoided the real question of the ordinance's legality. "I don't like the idea (of suing the petitioners), but that's part of the American process."

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