Lead Opinion
OPINION
By the Court,
In this opinion, we consider the constitutionality of NRS 295.009, which places a single-subject requirement on initiative petitions, and whether the initiative petition at issue in this appeal, the Nevada Property Owners’ Bill of Rights, violates that requirement. We conclude that NRS 295.009 is constitutional and that because the Nevada Property Owners’ Bill of Rights embraces more than one subject, the initiative violates this statute. Even so, strong public policy favors upholding the initiative power whenever possible, and NRS 295.009 does not prescribe a remedy for single-subject requirement violations. As the initiative includes a severa-bility clause and facially and unequivocally pertains to a primary subject — eminent domain — we are compelled to sever sections 1 and 8, which do not pertain to eminent domain, in lieu of removing the entire initiative from the ballot.
Further, we confirm that initiatives proposing constitutional amendments must propose policy and not direct administrative details. Sections 3, 9, and 10 of the initiative violate this threshold requirement and therefore must be stricken. The rest of the initiative, consisting of sections 2, 4, 5, 6, 7, 11, 12, 13 and 14 shall proceed to the ballot.
In September 2005, respondents People’s Initiative to Stop the Taking of Our Land (PISTOL), Don Chairez, Kermitt Waters, and Autumn Waters (collectively “the proponents”) filed an initiative petition entitled “Nevada Property Owners’ Bill of Rights” with the Secretary of State for placement on the November 7, 2006 ballot. The initiative seeks to amend Article 1 of the Nevada Constitution by adding a new section, section 22, consisting of 14 separate provisions. The initiative’s provisions are as follows:
1. All property rights are hereby declared to be fundamental constitutional rights and each and every right provided herein shall be self-executing.
2. Public use shall not include the direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another private party. In all eminent domain actions, the government shall have the burden to prove public use.
3. Unpublished eminent domain judicial opinions or orders shall be null and void.
4. In all eminent domain actions, prior to the government’s occupancy, a property owner shall be given copies of all appraisals by the government and shall be entitled, at the property owner’s election, to a separate and distinct determination by a district court jury, as to whether the taking is actually for a public use.
5. If a public use is determined, the taken or damaged property shall be valued at its highest and best use without considering any future dedication requirements imposed by the government. If private property is taken for any proprietary governmental purpose, the property shall be valued at the use to which the government intends to put the property, if such use results in a higher value for the land taken.
6. In all eminent domain actions, just compensation shall be defined as that sum of money, necessary to place the property owner back in the same position, monetarily, without any governmental offsets, as if the property had never been taken. Just compensation shall include, but is not limited to, compounded interest and all reasonable costs and expenses actually incurred.
7. In all eminent domain actions where fair market value is applied, it shall be defined as the highest price the property would bring on the open market.
*900 8. Government actions which result in substantial economic loss to private property shall require the payment of just compensation. Examples of such substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of any access to private property, and limiting the use of private air space.
9. No Nevada state court judge or justice who has not been elected to a current term of office shall have the authority to issue any ruling in an eminent domain proceeding.
10. In all eminent domain actions, a property owner shall have the right to preempt [sic] one judge at the district court level and one justice at each appellate court level. Upon prior notice to all parties, the clerk of that court shall randomly select a currently elected district court judge to replace the judge or justice who was removed by preemption [sic].
11. Property taken in eminent domain shall automatically revert back to the original property owner upon repayment of the original purchase price, if the property is not used within five years for the original purpose stated by the government. The five years shall begin running from the date of the entry of the final order of condemnation.
12. A property owner shall not be liable to the government for attorney fees or costs in any eminent domain action.
13. For all provisions contained in this section, government shall be defined as the State of Nevada, its political subdivisions, agencies, any public or private agent acting on their behalf, and any public or private entity that has the power of eminent domain.
14. Any provision contained in this section shall be deemed a separate and freestanding right and shall remain in full force and effect should any other provision contained in this section be stricken for any reason.
After the necessary signatures were gathered and verified, the Secretary of State determined that the initiative had qualified for placement on the November 2006 ballot. In reviewing the initiative, the Secretary was required to determine whether it complied with Nevada’s single-subject requirement, NRS 295.009.
DISCUSSION
NRS 295.009, Nevada’s recently enacted single-subject requirement for initiatives, is the focal point in this appeal. As the statute’s constitutionality has been called into question, we first address this threshold issue. We then discuss the statute’s application to the initiative at hand and the remedy, in this case, for a statutory violation. Finally, we analyze the initiative under the threshold requirement that it propose policy.
A. Standard of review
This court reviews a district court’s decision denying declaratory relief made in the absence of any factual dispute de novo.
B. NRS 295.009 ‘'s single-subject requirement is constitutional
During the 2005 legislative session, the Legislature enacted NRS 295.009, which, among other things, places a single-subject requirement on initiative petitions. Subsection (l)(a) of the statute provides that “[e]ach petition for initiative . . . must . . . [ejmbrace but one subject and matters necessarily connected therewith and pertaining thereto.” Subsection 2 further defines what one subject encompasses.
The proponents challenge the constitutionality of NRS 295.009, under both the Nevada and United States Constitutions. They contend that the Nevada Constitution does not provide the Legislature with the authority to enact a law restricting ballot initiatives to a
1. Nevada Constitution
Nevada Constitution Article 19, Section 2 provides that “the people” reserve unto themselves the power to propose and enact statutes, amendments to statutes, and amendments to the Nevada Constitution by initiative petition. Article 19, Section 5, however, provides that “the legislature may provide by law for procedures to facilitate the operation of [Article 19’s provisions].” Thus, the Nevada Constitution explicitly authorizes the Legislature to enact laws regulating the initiative process, so long as those laws facilitate the provisions of Article 19. The proponents fail to address or acknowledge Article 19, Section 5 and its express grant of authority to the Legislature.
By limiting petitions to a single subject, NRS 295.009 facilitates the initiative process by preventing petition drafters from circulating confusing petitions that address multiple subjects. This goal was endorsed by the Tenth Circuit Court of Appeals in evaluating the constitutionality of Colorado’s single-subject requirement in Campbell v. Buckley.
NRS 295.009’s single-subject requirement facilitates the provisions of Article 19. Accordingly, under Article 19, Section 5, the Legislature had the authority to enact this requirement for initiative petitions.
2. United States Constitution
The proponents also contend that the single-subject requirement places an unconstitutional limitation on core political speech, under the First Amendment of the United States Constitution, requiring a strict scrutiny analysis. Instead, however, a more flexible balancing test applies, and under this test, the single-subject requirement does not run afoul of the First Amendment.
a. The constitutionality of the single-subject requirement must be evaluated under the flexible balancing test, not strict scrutiny
In Burdick v. Takushi,
We have adopted this flexible standard in reviewing a statute that limited the time for circulating recall petitions.
Similarly, NRS 295.009’s single-subject requirement does not restrict the overall quantum of speech or otherwise inhibit communication with voters about proposed political change. The single-subject requirement is facially neutral and represents a reasonable, nondiscriminatory restriction.
b. The single-subject requirement does not violate the First Amendment
In applying the balancing test, the Campbell court noted that the single-subject requirement “serve[s] to prevent voter confusion and promote informed decisions by narrowing the initiative to a single matter and providing information on that single matter to the voter.”
Like the provision at issue in Campbell, Nevada’s single-subject requirement does not prevent petitioners from addressing multiple subjects and thereby restrict the quantum of speech. It simply requires petitioners to address separate subjects in separate petitions. Moreover, the rule is nondiscriminatory, as it does not limit the subject matter of petitions in general; it merely limits petitioners to addressing one subject per petition. Thus, the application of
We agree with the Tenth Circuit that these types of interests are significant and justify a single-subject requirement. Even though circulating more than one petition may increase costs for the proponents, circulating multiple petitions, as noted in Campbell, likely fosters speech. The Eleventh Circuit Court of Appeals has explained, in applying Florida’s single-subject rule, that “the Constitution does not require [a state] to structure its initiative process in the most efficient, user-friendly way possible.”
C. The initiative fails to satisfy the single-subject requirement
NRS 295.009(l)(a) provides that “[e]ach petition for initiative or referendum must . . . [e]mbrace but one subject and matters necessarily connected therewith and pertaining thereto.” Subsection 2 of the statute further defines the “one subject” requirement set forth in subsection (l)(a):
For the purposes of paragraph (a) of subsection 1, a petition for initiative or referendum embraces but one subject and matters necessarily connected therewith and pertaining thereto, if the parts of the proposed initiative or referendum are functionally related and germane to each other in a way that provides sufficient notice of the general subject of, and of the interests likely to be affected by, the proposed initiative or referendum.
NRS 295.009 plainly sets forth the standard to be applied in determining whether an initiative petition encompasses more than one
Our preliminary inquiry, then, is whether the initiative’s parts are “functionally related” and “germane” to each other. Here, in considering the arguments made by the proponents’ counsel and examining the text of the initiative on its face, we may determine what the initiative’s overall subject is.
Although the proponents’ attorneys have not been entirely consistent, in either their briefs or during oral argument they have essentially admitted that the initiative originated as a response to the United States Supreme Court’s recent decision in Kelo v. New London,
Proponents’ attorneys have also explained, however, that the initiative’s provisions go further than simply addressing Kelo. At argument, counsel agreed that the initiative is “Kelo plus.” In fact, counsel made it clear that, with respect to the initiative, ‘ ‘Kelo is the tip of the iceberg.” And, in their briefs, the proponents’ attorneys repeatedly state that the initiative concerns eminent domain. The initiative itself unequivocally sustains these statements, as the vast majority of its provisions address one subject — eminent domain. Indeed, the description of the initiative’s effect specifically states that “[t]he following constitutional provisions shall supersede all conflicting Nevada law regarding eminent domain actions.” Thus, the primary subject of the initiative is unquestionably eminent domain, with its genesis the Supreme Court’s Kelo decision. Because each and every provision in the initiative must be “functionally related” and “germane” to one another, it follows that, with respect to this initiative, every provision must be “functionally related” and “germane” to the subject of eminent domain.
Section 8 addresses government actions that cause substantial economic loss to property rights. Specifically, section 8 provides that “government actions which result in substantial economic loss to private property shall require the payment of just compensation.” This section further provides that “[e]xamples of such substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of any access to private property, and limiting the use of private air space.” As a result, this section is extremely broad and concerns any government action that causes substantial economic loss. Although this section would, as the proponents contend, apply to many inverse condemnation cases, which this court has held to be the “constitutional equivalent to eminent domain,”
To the extent that section 8 would require payment of just compensation for all of the aforementioned government actions if the actions caused substantial economic loss to private property, that section far exceeds the scope of what could, even under an extremely liberal definition, be classified as eminent domain. “Government actions” related to construction projects, public transportation routes, and the denial of requested zoning changes or special use permits are in no way “functionally related” or “germane” to eminent domain, and this section clearly fails to provide sufficient notice of the wide array of subjects addressed in section 8 or the interests likely to be affected by it. Because of the far-reaching impact of this section on government actions completely unrelated to eminent domain, the fact that this section will also affect inverse condemnation is insufficient to render section 8 functionally related or germane to eminent domain. The proponents could easily have phrased section 8 in a way that limited its impact to eminent domain, but instead, they chose to use expansive language addressing government actions far beyond the scope of this subject.
Accordingly, we conclude that although the initiative addresses a primary subject, eminent domain, it embraces more than one subject in light of sections 1 and 8. Because the initiative encompasses more than one subject, it violates NRS 295.009’s single-subject requirement. We therefore must determine the appropriate remedy for this violation.
D. The initiative must be severed to preserve the people’s will
The opponents argue that the initiative should be wholly stricken from the ballot. The proponents, on the other hand, assert that the initiative should be severed and preserved, in major part, for the voters’ consideration. For four reasons, severance and preservation is appropriate in this case.
First, and foremost, under the unique circumstances of this case, the initiative, even though it violates the single-subject re
Second, the initiative’s section 14 contains a severability clause, which provides that “[a]ny provision contained in this section shall be deemed a separate and freestanding right and shall remain in full force and effect should any other provision contained in this section be stricken for any reason.’ ’ Thus, the initiative petition’s signers have expressed a desire to allow the initiative to proceed even without some sections, and, in severing, this court need not speculate whether the signatories would have signed the petition in its severed form.
Third, NRS 295.009 does not prescribe a remedy for violations of the single-subject requirement. In the absence of a legislative mandate that all violations of the single-subject requirement result in an initiative’s disqualification from the ballot, severance is permissible. Severance is routinely employed by courts to address single-subject violations after legislative enactments.
After the Senate passed the proposal, the Assembly passed a significantly amended version, which revised the language of that provision in a manner eliminating any reference to void petitions, more like that which is now used.
Thus, the only evidence of legislative intent regarding a remedy for violations of the single-subject requirement is that violations do not automatically render an initiative void.
Fourth, and significantly, our Constitution reserves to the people the initiative power.
And, although the dissent asserts that our decision to sever is inconsistent with this court’s prior decision in Rogers v. Heller,
For all of these reasons, we conclude that sections 1 and 8 should be severed from the initiative in light of the single-subject violation. Severance eliminates the “Hobson’s choice” described by our dissenting colleagues. We also note that the proponents remain free to circulate, in the future, one or more initiative petitions concerning the severed sections.
E. Initiative petitions must contain legislative, or policy proposals, and certain of the initiative’s provisions violate this threshold requirement
In Citizens for Train Trench Vote v. Reno,
Outside of the initiative power, statutes and constitutional amendments are proposed by the Legislature, a non-administrative body. In Nevada, as in most states, we have an administrative code, which governs administrative issues and is created not by the Legislature but by entities with rulemaking authority, which fill in administrative details pertaining to the policy articulated in legislation. The people’s initiative power is “coequal, coextensive, and concurrent” with that of the Legislature;
By concluding that our Constitution may include administrative, non-policy matters, we would defy the very nature of the Constitution itself. As courts have recognized, “[t]he written constitution in this nation has always enjoyed a status superior to legislative enactments and has been variously portrayed as ‘original legislation,’ ‘organic law,’ or ‘fundamental law.’ ”
‘ ‘A state constitution may aptly be likened to a legislative act enacted directly by the people themselves in their sovereign*915 capacity as a political entity . . . and therefore is the fundamental, extraordinary act by which the people establish the structure and mechanism of their government. Essentially, a constitution is fundamental legislation directly by the people acting politically in their sovereign capacity . . . .”61
We have also determined that the Constitution “has been very properly defined to be a legislative act of the people themselves in their sovereign capacity.”
We now turn to the initiative’s remaining sections. As set forth in Train Trench, legislation “originates or enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of the citizens or their officers,’ ’ whereas impermissible administrative matters simply “put into execution previously-declared policies or previously-enacted laws or direct[ ] a decision that has been delegated to [a governmental body with that authority].’ ’
Here, most of the initiative’s remaining provisions appear to dictate policy, as they at least arguably pertain to substantive changes in eminent domain law. Three of the initiative’s provisions, however — sections 3, 9, and 10 — dictate administrative details in clear contravention of the threshold requirement, as these rulemaking decisions have been delegated to a governmental body with that authority — the courts. In particular, the initiative’s section 3 states
These provisions concern the day-to-day operations of Nevada’s court system and therefore direct decisions that have been delegated to the judiciary.
F. The opponents’ equal protection argument will not be considered
In addition to the arguments addressed above, the opponents argue that if enacted, the initiative would violate the Fourteenth Amendment’s Equal Protection Clause. As we recently explained in Herbst Gaming, Inc. v. Secretary of State,
CONCLUSION
The single-subject requirement contained in NRS 295.009 was properly enacted and does not run afoul of the First Amendment. In this case, the initiative violates the single-subject requirement because it includes two provisions that are not functionally related or germane to eminent domain. Additionally, three provisions violate the threshold prerequisite that initiatives propose policy. We decline, however, to remove the entire initiative from the ballot. Instead, we are compelled, under the unique circumstances of this case, to sever the portions of the initiative that pertain to secondary subjects and to strike the provisions that dictate administrative details. Accordingly, sections 1 and 8, shall be severed from the initiative, and sections 3, 9, and 10, shall be stricken. Sections 2, 4, 5, 6, 7, 11, 12, 13 and 14 may proceed to the November 2006 ballot. In this, we affirm in part and reverse in part the district court’s order.
Notes
See NRS 293.124.
See County of Clark v. Upchurch,
See County of Clark v. Doumani,
Koller v. State,
Id. at 746.
Id. at 745 (stating that the single-subject requirement “cannot be characterized as a direct limitation on the quantity of speech available to them”).
Buckley v. American Constitutional Law Foundation, Inc.,
Because Article 19, Section 5 expressly grants the Legislature the authority to enact laws that facilitate the provisions of Article 19, which, we conclude, includes enacting a single-subject requirement for initiative petitions, the proponents’ reliance on this court’s decision in State v. Findlay,
Cf. Citizens for Honest Gov’t v. Sec. of State,
Id. at 433-34.
Id. at 434.
Id.
Id.
Id.
Citizens for Honest Gov’t v. Sec. of State, 116 Nev 939,
Campbell,
Campbell,
Campbell,
Id. at 745-47.
Id. at 745.
Id. at 745-46.
Id.
Id. at 746.
Id.
Id.
Id.
Id.
Biddulph v. Mortham,
NRS 295.009(2).
Id. at 489.
In support of their argument that section 1 is “functionally related” and “germane” to eminent domain, the proponents point out that Article 1, Section 8(6) of the Nevada Constitution and the Fifth Amendment to the United States Constitution already protect property rights by requiring the payment of just compensation when private property is taken. This argument is irrelevant to our analysis here, however, as it does not in any way demonstrate how section 1, which creates a broad new category of fundamental rights, is “functionally related” or “germane” to the subject of eminent domain.
County of Clark v. Alper,
To the extent that the proponents imply that the denial of a request for a zoning change or special use permit is not “government action” but is instead “government inaction,” that contention lacks merit. The government agency’s denial of such a request would clearly be considered government action.
See Hammerschmidt v. Boone County,
See Senate of the State of Cal. v. Jones,
We recently pointed to the distinctions in applying constitutional and statutory provisions, albeit in a different context, in Nevadans for Nevada v. Beers,
S.B. 224 (bill text, as introduced, March 21, 2005); See Senate Journal 73d Leg., at 246 (Nev., March 21, 2005).
S.B. 224 (bill text, as introduced, March 21, 2005).
S.B. 224, § 2(1) (March 21, 2005).
Assembly Daily Journal, 73d Leg. (Nev., May 27, 2005); see also S.B. 224 amend, no. 1102.
Assembly Daily Journal, 73d Leg. (Nev., May 27, 2005); see also S.B. 224 amend, no. 1102; Work Session on A.B. 185 Before the Sen. Leg. Operations and Elections Comm., 73d Leg. (May 12, 2005).
Senate Journal, 73d Leg., at 2044 (Nev., June 1, 2005); Senate Journal, 73d Leg., at 2208, 2231 (Nev., June 3 , 2005).
Assembly Daily Journal, 73d Leg., at 92 104, 142 (Nev., June 6, 2005); Senate Journal, 73d Leg., at 2473-81, 2516 (Nev., June 6, 2005).
See, e.g., Carson-Tahoe Hosp. v. Bldg. & Constr. Trades,
Brewery Arts Ctr. v. State Bd. Examiners,
Nev. Const, art. 19, § 2(1) (providing that “the people reserve to themselves the power to propose, by initiative petition . . . amendments to this Constitution, and to enact or reject them at the polls”).
Id. § 5.
University Sys. v. Nevadans for Sound Gov’t,
Id.
Id. at 175, 177,
See, e.g., Comment, Limitations on Initiative and Referendum, 3 Stan. L. Rev. 497, 503 (1951).
Gallivan v. Walker,
Perkins v. Eskridge,
Id. at 33 (quoting Board of Supervisors of Elections v. Attorney Gen.,
King v. Board of Regents,
Train Trench,
See, e.g., Glover v. Concerned Citizens for Fuji Park,
See, e.g., NRS 2.120(1), (2) (recognizing that “the supreme court may make rules not inconsistent with the constitution and laws of the state for its own government, the government of the district courts, and the government of the State Bar of Nevada” and that “[t]he supreme court, by rules adopted and published from time to time, shall regulate original and appellate civil practice and procedure, including, without limitation, pleadings, motions, writs, notices and forms of process, injudicial proceedings in all courts of the state”); Nev. Const, art. 6, § 19(1) (providing that the chief justice as administrative head of the court system and subject to rules that the supreme court may adopt, may apportion the work of the supreme court among justices, and may recall to active service any retired justice or judge and assign that justice or judge to “appropriate temporary duty within the court system”).
Id. at 888,
Id.
Id.; see also Garvin v. Dist. Ct.,
In light of the nature and urgency of this matter, we suspend NRAP 41(a) and direct the clerk of this court to issue the remittitur forthwith. See Rogers,
Concurrence Opinion
concurring and dissenting:
I agree with the majority that the single-subject requirement of NRS 295.009 is not constitutionally infirm. I also agree that the initiative petition here violates NRS 295.009 because it contains multiple provisions “functionally related and germane” to more than one subject. I disagree, however, with the majority’s remedy for this statutory violation. Thus, I have determined to join Justice Hardesty’s dissent with regard to the remedy afforded and agree with him that we should order the petition removed from the November ballot. I write separately to note my views concerning the scope of NRS 295.009 and how it was violated in this instance.
NRS 295.009, adopted last year by the Nevada Legislature, provides as follows:
1. Each petition for initiative or referendum must:
(a) Embrace but one subject and matters necessarily connected therewith and pertaining thereto; and
*918 (b) Set forth, in not more than 200 words, a description of the effect of the initiative or referendum if the initiative or referendum is approved by the voters. The description must appear on each signature page of the petition.
2. For the purposes of paragraph (a) of subsection 1, a petition for initiative or referendum embraces but one subject and matters necessarily connected therewith and pertaining thereto, if the parts of the proposed initiative or referendum are functionally related and germane to each other in a way that provides sufficient notice of the general subject of, and of the interests likely to be affected by, the proposed initiative or referendum.
When the text of a statute is plain and unambiguous, a court should impart it with ordinary meaning and not go beyond that meaning.
In my view, this statute suffers from a degree of ambiguity in its basic application — the term “one subject” is inescapably susceptible of broad or narrow scope. Quite predictably then, neither the Secretary of State nor the district court engaged in any comprehensive attempt at determining the scope of the “single subject” rule. It is understandable that this has occurred because both could reasonably conclude that this court would be the final arbiter of the issue and because, in truth, it appears that the Legislature intended that the rule be generally stated. Thus, we are compelled to define the term by episodic inclusion and exclusion in a manner consistent with that intent.
The clear purpose of NRS 295.009 is to provide guidance and structure so that persons seeking to change the basic precepts of state governance may draft constitutional initiatives that are readily understandable and do not require the petition signators and voters to engage in “logrolling,” i.e., signing or voting for a multifaceted petition in order to effect at least one element of change. While the scope of the limitation as drafted by the Legislature is not a model of specificity, we should assess the People’s
The authors of the PISTOL petition quite candidly admit that a primary impetus for their initiative is to prevent state and local governments in Nevada from using eminent domain powers to take private property for the purpose of ultimate transfer to other private parties for neighborhood redevelopment, as the United States Supreme Court sanctioned in Kelo v. New London.
All of the clearly separate subjects embraced within the PISTOL petition have dramatically differing ramifications and all require that the signators and prospective voters accept the entirety of the petition in order to obtain any of the proposed changes to the Nevada Constitution. Accordingly, this multifaceted petition runs afoul of the statutory command.
Unfortunately, when a petition violates the single-subject statute, enforcement of necessity requires some degree of nullification. Accordingly, while the signators here intended that the entire
The petitioners argue that the PISTOL petition deals with one general subject, eminent domain. As stated, no member of this tribunal agrees on that score because any rule supporting such a broad interpretation would render meaningless the statute’s attempt to limit the scope of individual proposed amendments to the State Constitution. Again, the Kelo-portion of the petition separately embraces one subject because it alone defines government action that cannot qualify as eminent domain; and the remaining portions, Kelo plus, further embrace a number of additional separate subjects. None of the groupings identified above are ‘ ‘necessarily connected” to any of the others.
Interestingly, while the court is unanimous in its conclusion that PISTOL violates NRS 295.009, there is no solid consensus as to a remedy or a sanction for noncompliance — a component that is patently missing from the statute. No wonder the Secretary of State eschewed any real attempt at enforcing this measure. But the Legislature could not possibly have intended to pass a law with the contradictory intent that no enforcement by either the executive or judicial branches would be forthcoming. Thus, we must provide a remedy that best reflects the legislative purpose behind the single-subject rule — to provide clarity and certainty and to minimize so-called “Hobson’s choices” for signators and voters.
Four permutations are available: do nothing and leave the entire matter on the ballot as is; break the measure out into separate ballot measures by redrafting them into separate sections so that all of the elements remain on the ballot; strike secondary portions not essential to the primary thrust of the measure; or strike the petition in its entirety from the ballot.
The first alternative is clearly unavailable because it fails in any respect to remedy or sanction the violation. Again, it would be absurd to conclude that the Legislature went to the trouble of passing this statute without a remedy or sanction for violations of it. The second alternative, redrafting the measure into component parts and leaving all of them on the ballot, is equally problematic as a matter of general application. In this case, as well as in all future cases based upon the precedent set in this matter, we would have to divine groupings ourselves on a subjective basis, groupings which are not always susceptible of clear demarcation. Going further, the second alternative would reward the sponsors for forcing the signators to engage in logrolling to obtain protection from Kelo, and would encourage future sponsors to attach less attractive measures to more popular ones.
Finally, as noted by Justice Hardesty:
The majority, by creating this remedy of severing and striking portions of an initiative, has set a dangerous precedent for the future review of initiative petitions. Nevada courts are now empowered to sever and strike provisions that violate the single-subject requirement, not because those provisions are unconstitutional or unenforceable, but simply because the court determines that the offending provisions fall outside the court’s conjecture of what single-subject the petition is [primarily] attempting to promote. . . . Such discretion, . . . allows the courts to employ pure “judicial surgery” in severing a petition, creates an unworkable test for future cases and gives the courts unfettered freedom to tamper with the people’s constitutional prerogative.
While striking the measure seems harsh in the short term, the remedy Justice Hardesty and I now suggest provides the most certainty for future initiative proponents in the long run. The majority ruling today mandates, without any definitive standard, biannual judicial interference in the initiative process. Our solution limits the use of judicial discretion such as applied here, which can never truly and accurately reflect the will of petition signators and, ultimately, the voters. In short, the majority holding today requires ad hoc decision making by judges concerning the subjective intent of initiative proponents.
It would be inviting to permit the electorate to vote on the Kelo portion of the petition and simply strike the rest. But that would not settle the overriding question here: what standard should we use to strike or not strike? While a ruling taking an expedient course seems fair today, it would set a trap for deciding the validity of future ballot initiatives under NRS 295.009. We should adopt a rule that gives absolute and clear guidance to proponents of measures such as PISTOL. The majority ruling today does
Banegas v. SIIS,
Id.
See California Commercial v. Amedeo Vegas I, 119 Nev 143, 145,
This might include anything from automobiles to professional licenses.
Concurrence Opinion
concurring in part and dissenting in part:
The majority concludes that the single-subject requirement embodied in NRS 295.009 does not violate the Nevada or federal constitutions, and that, by its plain language, the requirement limits initiative and referendum provisions to those that are “functionally related and germane” to the petition’s general subject. The majority further concludes that the initiative at issue in this case, the Nevada Property Owners’ Bill of Rights, impermissibly contains provisions functionally related and germane to more than one subject. With these conclusions, I concur. But with regard to the majority’s view that, as a consequence of the single-subject requirement violation, this court can and should sever and strike certain provisions from this initiative, I dissent.
As the majority recognizes, the single-subject requirement has been implemented in several states and was essentially designed to help facilitate the people’s legislative process by promoting informed decisions and preventing the confusion, and in some cases, deception, that results when certain less-popular provisions are “log-rolled” into a petition proposing an idea that the public generally favors.
Further, the requirement prevents “log-rolling,” which occurs when two or more completely separate provisions are combined in a petition, one or both of which would not obtain enough votes to pass without the other. Generally, to “log-roll” a provision into enactment, the proponent advances a proposition that the proponent expects would pass constitutional muster and be easily enacted by the voters, but then adds to the petition a provision, often “hidden” deep within, that is less popular. For instance, a group might
In this case, as the majority concludes, the initiative petition im-permissibly violates the single-subject requirement because it contains more than one subject. Indeed, despite their assertions that the initiative petition had as its impetus the U.S. Supreme Court’s ruling in Kelo v. New London,
As the majority suggests, the initiative contains at least three separate subjects: fundamental property rights in Nevada; eminent domain actions; and governmental liability for a new and as of yet undefined claim known as “governmental action” (the legal elements of which appear to be defined only by whether the plaintiff has sustained “substantial economic loss,” a term which is also undefined and left solely to future judicial discretion). Accordingly, I agree with the majority that this petition pertains to at least three different subjects, if not more, and as a result, violates NRS 295.009.
I disagree, however, that there exists any basis or legal authority for the device fashioned by the majority to remedy this viola
Respectfully, based on general principles of statutory construction, prior Nevada decisional law, and important public policy reasons, I disagree that the majority may do so. First and foremost, NRS 295.009 does not allow for the severance and striking of purportedly offensive provisions. That statute is entitled, “Requirements for petition.”
Further, the majority is proceeding without the development of any record that would form the basis for severing and striking certain provisions while leaving others on the ballot. As there is consequently no way of discerning whether subsections 1 and 8 are not “key” components of the initiative, the people’s voice is no less obstructed here by the majority’s determination that the initiative should be severed for those subsections’ purported offense to NRS 295.009 than if the petition had failed to meet a threshold requirement under the Nevada Constitution.
In fact, on the few occasions when courts of other jurisdictions have severed petitions for violations of the single-subject require
This court historically has concluded, in the legislative context, that when it is not possible to determine from an act and the title thereof which portion of the act is valid and which is not, single-subject requirement violations by the Legislature render the entire legislative act void.
Although as additional authority for striking certain provisions, the majority points to the initiative’s subsection 14, which contemplates the proposed section’s severability in the event a provision is stricken, that subsection certainly does not give the court license to strike provisions that do not have a separate legal basis for their removal, such as unconstitutionality or unenforceability.
Finally, to preserve unadulterated the will of the people, the proper remedy for the single-subject requirement violation here is to strike from the ballot the entire initiative. The same sanctity with which this court reviews initiative petitions should be given to the severance of their terms.
The majority, by creating this remedy of severing and striking portions of an initiative, has set a dangerous precedent for the future review of initiative petitions. Nevada courts are now empowered to sever and strike provisions that violate the single-subject requirement, not because those provisions are unconstitutional or unenforceable, but simply because the court determines that the offending provisions fall outside the court’s conjecture of what single subject the petition is attempting to promote. But the majority fashions no analysis to employ in determining which of
Instead, courts should respect what the citizens of this state have signed by refusing to manipulate or tinker with it. While striking a petition that violates the single-subject requirement in its entirety perhaps seems severe, perverting the signers’ will through discretionary , judicial modification is no less drastic a remedy. Moreover, striking the petition in whole is less harsh a remedy than it at first glance seems. While it is recognized that drafting and circulating an initiative petition for signatures consumes considerable time and financial resources, a stricken initiative’s proponents nonetheless are not without solution; they may cure the defects in their petition and prepare it for the next election. In all events, future initiative and referendum petition proponents must exercise great care to avoid single-subject requirement violations. As it now stands, however, future proponents must exercise even greater care in avoiding single-subject requirement violations, lest their will be subverted through the severance and striking of certain provisions by unfettered judicial discretion.
See Hearing on S.B. 224 Before the Senate Legislative Operations and Elect. Comm., 73d Leg. (Nev., April 12, 2005) (indicating that the purpose of Nevada’s single-subject law is to prevent petition signer and voter confusion, especially regarding potentially “hidden” subjects in a petition); Campbell v. Buckley,
A “Hobson’s choice” is “an apparently free choice when there is no real alternative.” Merriam Webster’s Collegiate Dictionary 551 (10th ed. 1997).
Garvin v. Dist. Ct.,
See Coast Hotels v. State, Labor Comm’n,
See generally Merriam Webster’s Collegiate Dictionary 995 (10th ed. 1997) (defining “requirement” as both “something required: . . . NECESSITY” and “something essential to the existence or occurrence of something else: CONDITION”).
Coast Hotels,
See, e.g., Taxpayer Protection v. Unfair Tax Schemes,
Id. at 172-77,
Id. at 177,
Id. at 178,
Rogers,
See Cal. Trial Lawyers Ass’n v. March Fong Eu,
See, e.g., Citizens for Resp. Behavior v. Superior Court, 2 Cal. Rptr. 2d 648, 661 (Ct. App. 1991) (rejecting the suggestion that an initiative’s sever-ability provision saves at least some parts of the proposal, because, “[wjhile severance of offending portions of a statute is often a permissible approach if the law has been enacted, the policy must be different when a court is faced with a proposed law,” since preelection severance could work “a deception on the voters”); Ray,
See Nev. Const. art. 4, § 17; State v. Hallock,
See generally Mineral County v. State, Bd. Equalization,
See, e.g., Santa Barbara School District v. Superior Court,
Rogers,
Because they represent the direct legislative voice of the people, see Garvin,
As I would strike the entire initiative because it violates NRS 295.009’s single-subject requirement, I do not address the sever and strike issue in light of the administrative/legislative distinction. Nevertheless, I note my agreement with the majority’s discussion of this issue.
March Fong Eu,
See Bennett,