Summary
noting that this court had always strictly limited its pre-election intervention to cases involving violations of state constitutional or statutory rules governing the procedures for placing initiatives and referendums on the ballot, and declining to enjoin an initiative that, if enacted, could later be held unconstitutional
Summary of this case from Garvin v. Dist. Ct.Opinion
No. 21326
December 20, 1990
Appeal from order denying complaint for an injunction. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Vargas Bartlett and John P. Sande, III, Reno, for Appellants.
Brian McKay, Attorney General, and Jonathan L. Andrews, Deputy Attorney General, for Secretary of State; Dyer McDonald, for Nevada State Education Association, Carson City, for Respondents.
OPINION
On June 29, 1990, appellants, a group of individuals, for profit corporations and not for profit corporations (taxpayers), filed in the district court a complaint seeking extraordinary and injunctive relief to preclude the respondent Secretary of State from distributing to the various county clerks copies of the corporate tax initiative (Question 6) for inclusion on the ballot for the 1990 general election. The taxpayers alleged that various constitutional defects were apparent on the face of Question 6. On July 2, 1990, the district court entered an order directing the Secretary of State to show cause why the injunction requested in the complaint should not be issued.
On July 2, 1990, the Nevada State Education Association (NSEA) filed a motion to intervene as a defendant in the action below. The district court subsequently granted the motion to intervene.
On July 3, 1990, the Secretary of State filed her opposition to the requested injunction. Also on that date, the NSEA filed a motion to dismiss appellants' complaint. NSEA also filed in the district court points and authorities opposing the issuance of the injunction requested by the taxpayers. On July 5, 1990, taxpayers filed their opposition to the motion to dismiss, and their reply points and authorities in support of the requested injunction.
On July 6, 1990, the district court entered an order granting, in part, the NSEA motion to dismiss. Specifically, the district court determined that the individual taxpayers and the not for profit corporate plaintiffs lacked standing to maintain the action for injunctive relief. The district court denied the motion to dismiss in all other respects.
On July 11, 1990, the Secretary of State filed her answer to the complaint. She also filed a supplemental opposition to the requested injunction. On July 19, 1990, NSEA filed additional points and authorities opposing the issuance of the requested injunction. The taxpayers filed their additional reply points and authorities in support of the requested injunction.
On July 30, 1990, after a hearing, the district court entered an order dismissing the taxpayers' complaint. This appeal followed.
On September 12, 1990, this court entered an order affirming the order of the district court, and indicated that an opinion stating the reason for the court's decision would follow.
The taxpayers argue primarily that Question 6 violates the United States Constitution because it would tax the interest earned on federal obligations, but would not tax the interest earned on state or municipal obligations. See Memphis Bank and Trust Co. v. Garner, 459 U.S. 392 (1983). Assuming, arguendo, that the taxpayers are correct, this would be an insufficient reason to preclude the people of this state from exercising their right to vote for or against an initiative petition.
In Caine v. Robbins, 61 Nev. 416, 131 P.2d 516 (1942), this court held that ballot questions may be enjoined "where a plain, palpable violation of the constitution is threatened." Caine, 61 Nev. at 427, 131 P.2d at 520. This rule has remained inviolate in an unbroken line of cases that has stood for almost fifty years. See Lauritzen v. Casady, 70 Nev. 136, 261 P.2d 145 (1953); Brown v. Georgetta, 70 Nev. 500, 275 P.2d 376 (1954); Beebe v. Koontz, 72 Nev. 247, 302 P.2d 486 (1956); Lundberg v. Koontz, 82 Nev. 360, 418 P.2d 808 (1966); Cirac v. Lander County, 95 Nev. 723, 602 P.2d 1012 (1979).
All of the cases in which this court has intervened to prevent a ballot question from going to a vote of the people have involved violations of the state constitutional or statutory rules governing the procedures by which those questions were placed on the ballot. See Caine v. Robbins, 61 Nev. 416, 131 P.2d 516 (1942) (lack of enacting language in the ballot question rendered the question void); Lauritzen v. Casady, 70 Nev. 136, 261 P.2d 145 (1953) (failure of county commission to schedule election within statutory time requirements rendered the election void); Lundberg v. Koontz, 82 Nev. 360, 418 P.2d 808 (1966) (failure to authenticate signatures on petition properly rendered the ballot question void).
The authorities cited above demonstrate that this court has never voided a ballot question because it may be held in the future to violate a provision of the United States Constitution. Such action would be unwise for two reasons. First, a measure that initially appears unconstitutional may be implemented in a constitutional manner. Second, even if an initiative measure is unconstitutional, there is great political utility in allowing the people to vote on the measure. Such a vote communicates clearly to the representative branches of government the popular sentiment on a particular issue or issues.
Because Question 6 contained no defects that would render it void under the Nevada constitution, the district court did not err when it denied the taxpayers' request for an injunction. We have examined the taxpayers' remaining arguments of error, and have determined that they lack merit. Accordingly, we affirm the order of the district court.