These are consolidated appeals and cross-appeals concerning three initiative petitions.
These appeals present a fundamental procedural question—whether the initiatives' circulators' failure to include statutorily mandated language in their affidavits verifying the signature-gathering process voids the signatures collected. Under this court's precedent, the initiative circulators' affidavits must substantially comply with certain statutory requirements. Here, the circulators' affidavits completely failed to include two statements mandated by NRS 295.0575: first, they do not state the number of signatures on the document, and second, they do not state that each signer had an opportunity to read the full text of the initiative before signing. We conclude that the affidavits do not substantially comply with the statutory requirements. Moreover, the proponents' efforts in the district court to cure the affidavits' defects were insufficient because the proponents failed to make a valid offer of proof necessary to show whether the circulators nevertheless complied with the statute's purposes.
In addressing these issues, we reject the proponents' First Amendment challenge to enforcement of NRS 295.0575's affidavit requirements, as the United States Supreme Court has implicitly approved of requirements similar to those at issue here. We also reject the proponents' argument that enforcement of the statute is barred by substantive due process concerns or estoppel. We therefore affirm the district court's judgment approving the decision of the Secretary of State to strike the signatures.
The Las Vegas Convention and Visitors Authority (LVCVA) is a statutorily created body that markets Las Vegas as a worldwide tourist and convention destination. It has described its mission as "attracting an ever-increasing number of visitors to Southern Nevada." It also operates the Las Vegas Convention Center and the Cashman Center. It is defined in NRS 354.474 as a local government entity because it was created pursuant to NRS Chapter 244A, governing county park and recreation commissions.
The LVCVA is funded primarily by room taxes imposed by the local governments in Clark County, including the County itself and its incorporated cities. Additional funding is obtained from gaming license fees imposed by most of these local governments.
The Nevada Taxpayers Protection Act initiative petition seeks to amend the Nevada Constitution to require that at least two-thirds of the voters approve any ballot initiative proposing a statutory or constitutional law that would "create, generate, or increase" public revenue in any manner, before that initiative could become law. In addition, to correct a perceived loophole allowing the Legislature to enact revenue-generating initiative statutes by simple majority vote, even though it must normally enact revenue-generating statutes proposed in a bill or by joint resolution by a two-thirds vote,
Procedural history of the initiatives' challenges
The LVCVA filed in the district court a declaratory relief action challenging the Education Enhancement Act and the Funding Nevada's Priorities Act. Clark County and the cities of Las Vegas, North Las Vegas, Mesquite, Henderson, and Boulder City ("the local governments") filed a separate declaratory relief action challenging the two initiatives. The two actions were consolidated. Following briefing and oral argument, the district court ruled in favor of the proponents, refusing to invalidate the initiatives. The district court also concluded that, while the local governments could not campaign for or against the initiatives, they could maintain the declaratory relief actions.
The LVCVA appealed, and its appeal was docketed as No. 51509. The local governments also appealed; their appeal was docketed as No. 51564. The proponents cross-appealed in both cases, challenging the portion of the district court's ruling that permitted the local governments to maintain the actions.
Similarly, opponents of the Nevada Taxpayers Protection Act, the nonprofit organizations Nevadans for Nevada and Nevada State Education Association, challenged that initiative's description of effect in the district court. The district court declared that the initiative petition's description of effect was valid and denied the initiative's opponents relief. The initiative's opponents then appealed; their appeal was docketed as No. 51639.
While the appeals were in briefing, the Secretary of State determined that the circulators' affidavits for all three initiatives were defective. In particular, none of the affidavits set forth the number of signatures on the document or a statement that each signer had an opportunity to read the full text of the initiative before signing, as required under NRS 295.0575. The Secretary of State found that the affidavits were defective and that no signatures collected by circulators with defective affidavits could be counted. Since all of the affidavits shared the same defects, the county clerks all returned verification results showing that no valid signatures for any of the initiatives had been collected. The proponents "appealed" the county clerks' results, essentially seeking reconsideration of the Secretary of State's decision to instruct the clerks not to count signatures with defective affidavits. The appeal was denied, and the proponents then filed a petition seeking various forms of relief in the district court.
The proponents asserted that, in preparing the affidavits, they relied on a publication prepared by the Secretary of State entitled,
The introductory page for the Initiative Guide's appendix, containing forms and copies of election statutes and regulations, stated, "The enclosed sections of the NRS do not reflect revisions made by the Nevada Legislature at its 2007 session as those revisions were not codified at the time this guide was published. Please check with the Legislative Counsel Bureau for the most recent version of the NRS."
Despite these warnings, the proponents did not review the pertinent statutes in NRS Chapter 295, particularly NRS 295.0575, and did not review the affidavit form set forth in NAC 295.020, which applies specifically to petitions for initiatives or referenda. The proponents stated that their circulators had copies of the initiatives as part of their documentation, but they did not indicate that the circulators were made aware that they should offer the opportunity to review the text to those signing the petitions. They were also apparently not informed that they should count the number of signatures that they obtained.
After a hearing, the district court issued its ruling upholding the Secretary of State's decision. The district court agreed with the proponents that the circulators' affidavit statute requires only substantial, not strict, compliance, but it held that the affidavits failed to meet even the more lenient standard. The district court further found that the affidavits could not be corrected, since the circulators could not swear that they had provided an opportunity to signers to review a measure's text when they had not been made aware of the requirement that they do so. The district court also rejected the proponents' constitutional arguments, holding that the restriction implicit in the statute was permissible under United States Supreme Court precedent, that the statute took precedence over any regulation, and that the inaccuracies in the Initiative Guide prepared by the Secretary of State did not render the statute unenforceable. The proponents' appeal in Docket No. 52045 followed. It was consolidated with the other pending appeals and cross-appeals involving the three initiatives, and the matters were expedited.
As a threshold matter, we determine that the LVCVA's participation in the underlying court actions and in these appeals was permissible because, as we have previously held, the statute barring the use of public funds to "support or oppose" a ballot question does not prohibit government entities from challenging an initiative before it is placed on the ballot. As the LVCVA is addressing the propriety of placing initiatives on the ballot, it may participate in these cases.
We then confront the issues of whether the circulators' affidavits satisfied statutory requirements and whether the governing statute is constitutional and enforceable in this case. Because we will not decide constitutional questions unless necessary,
The LVCVA may participate in a court challenge to an initiative
The proponents' cross-appeal in Docket Nos. 51509 and 51564 raises the issue of whether the LVCVA
Glover interpreted the predecessor of the current statute, former NRS 293.725, which provided
In Glover, we considered a district court order directing the Carson City Clerk to place an initiative on the ballot.
This court concluded that the statute was ambiguous and that the legislative history suggested that it should be interpreted narrowly to preclude only campaigning for or against a measure that had already been placed on the ballot.
The following year, during the 2003 legislative session, a bill was introduced to amend NRS 293.725 to clarify that a certain type of pamphlet, brochure, or advertisement, featuring an incumbent candidate and touting the benefits of his or her agency or department, that was distributed within a certain time period before that incumbent's reelection
It is well settled that when the Legislature amends a statute without disturbing language previously interpreted by this court, it is presumed that the Legislature approved the interpretation.
The district court properly upheld the Secretary of State's decision not to count the signatures because of defects in the circulators' affidavits
NRS Chapter 295 sets forth the requirements for ballot initiatives and referenda, specifying the signature requirements for statewide initiatives.
NRS 295.0575, setting forth the requirements for a circulator's affidavit, was adopted by the Legislature in 2007. Specifically, the statute requires each circulator to complete an affidavit swearing to the following:
Here, it is undisputed that all affidavits for all three initiatives lack the items listed in subsections (2) and (4) of the statute: the number of signatures and a statement that each signer had an opportunity to read the measure's full text before signing it. Instead, the affidavits followed a form contained in the Secretary of State's Initiative Guide, which was prepared before the 2007 legislative amendments to NRS Chapter 295 were codified or incorporated into amendments to the governing regulations. The form in the Initiative Guide was apparently based on NAC 293.182, which applies generally to all petitions requiring validation of signatures, and an older version of NAC 295.020, which had not yet been amended to reflect the 2007 legislative changes. (NAC 295.020 was amended in December 2007.) Despite the Initiative Guide's warnings to consult the current election statutes, the proponents did not review the 2007 statutory changes before proceeding with the initiatives.
The proponents argue that only substantial compliance with the statute is required and that the affidavits substantially complied because the reasonable purposes of the statute were met. They also assert that NRS 295.0575 is an unconstitutional restriction on ballot access. They further maintain that they permissibly relied upon the Initiative Guide and that enforcement of a statute that is inconsistent with the Initiative Guide violates due process. And they contend that the Secretary of State should be estopped from requiring compliance with a statute that the Initiative Guide did not include. Each of these contentions is addressed below.
The affidavits do not satisfy NRS 295.0575
To determine whether the statute was met by the affidavits in this case, we must first decide whether they were required to strictly comply with NRS 295.0575 or whether substantial compliance was sufficient. Once the appropriate standard is established, then this court must consider whether the affidavits met the required standard.
Substantial compliance is the appropriate standard
The proponents argue that substantial compliance is sufficient. The Secretary of State applied a strict compliance standard initially but concedes on appeal that substantial compliance is the correct standard. Of the other opponents, only the Nevada State Education Association argues on appeal for a strict compliance standard. The district court applied a substantial compliance standard without discussion, concluded that the affidavits were defective, and then noted that the affidavits would necessarily fail a strict compliance standard.
In Nevadans for Nevada v. Beers,
The proponents bear the burden of establishing substantial compliance
The Secretary of State determined that the affidavits did not satisfy the requirements of NRS 295.0575 because two of those requirements were wholly absent. As the parties challenging that determination, the proponents are properly allocated the burden of proving that the Secretary of State's decision was incorrect,
The affidavits do not substantially comply with the statute
The district court held that the affidavits did not substantially comply with NRS 295.0575 because they did not include two elements required by the statute: the number of signatures and a statement that signers had the opportunity to review the measure's full text before signing. The proponents assert that the statute's purposes were adequately served by the information in the affidavits they provided and, thus, substantial compliance was achieved. The opponents contend that the failure even to attempt to include all elements means that substantial compliance was lacking.
Nevada cases in the election context have recognized substantial compliance when a required element was present but was incomplete or supplied late. For example, in Springer v. Mount,
In other contexts, the complete failure to meet a specific requirement was found not to constitute substantial compliance. For example, in Schofield v. Copeland Lumber,
Thus, typically, failure to even attempt to comply with a statutory requirement will result in a lack of substantial compliance.
In this vein, a number of cases from other jurisdictions hold that circulator affidavits that are missing statutorily required statements are defective. In Loonan v. Woodley,
Despite the abundance of authority recognizing that substantial compliance cannot exist when there is a complete failure to address a particular statutory requirement, the proponents rely heavily on this court's opinion in Redl v. Secretary of State
We conclude, however, that substantial compliance in this instance requires the proponents to have at least attempted to satisfy each element in the statute. In particular, the two elements added in 2007 were deemed by the Legislature to provide additional protection against fraud to those requirements that were already in place. While the statute's legislative history does not tie specific provisions to specific testimony, it seems reasonable to infer that the requirement to state the number of signatures obtained was designed to prevent fraud such as that described by committee hearing testimony of a "signature party" at Lake Mead, during which circulators traced signatures from one petition to another, by requiring the circulator to state, at the time the signatures are turned in, the number of signatures the circulator obtained, so that additional signatures are not later added to the document. Also, the requirement that each signer be given the opportunity to review a measure's full text serves the purpose of ensuring that signers know what they are supporting. Moreover, neither of these purposes is met by the other requirements in the statute— that the circulator personally circulated the document and saw the signatories sign it— and thus, these elements appear to be "essential matters." Therefore, in contrast to Redl, where the purpose of the statute at issue was served by the list of officers, even though directors were not included at the time, here, NRS 295.0575's objectives were not met by the proponents' partial compliance. Consequently, Redl is not controlling. Also, to hold that the complete absence of these elements sufficed for substantial compliance would render their inclusion in the statute nugatory—thus violating a basic principle of statutory construction.
The proponents did not otherwise establish substantial compliance
At oral argument before this court, the proponents pointed to two items in the record that they asserted demonstrated substantial compliance, or at least the existence of other evidence showing substantial compliance, with the second and fourth statutory
To show substantial compliance with the fourth requirement, the proponents had to convince the district court that the petition circulators gave a sufficient number of signers the opportunity to read each initiative's text before signing the petition.
Also, the proponents pointed to a purported "offer of proof" made during the district court hearing. At that time, the district court asked the proponents what remedy would be appropriate if it determined that the affidavits were invalid. In response, the proponents' counsel stated that the court "could" require them to submit new affidavits that strictly complied with the statutory requirements—in essence, affidavits that averred to the number of signatures collected and that each signer had an opportunity to read the initiative's text. According to counsel, although obtaining the new affidavits "would be difficult" and likely impossible as to some circulators, the proponents "probably" could get enough new affidavits corresponding to sufficient signatures to place the initiatives on the ballot. Indeed, counsel noted, they were already in the process of obtaining such affidavits.
The proponents' suggested solution did not show substantial compliance with the fourth requirement for several reasons. First, the proponents failed to proffer any evidence or witness testimony to support their assertion that the circulators gave the signers an opportunity to read the initiative's text. Offers of proof are intended to (1) fully disclose to the court and opposing counsel the nature of evidence offered for admission, but rejected, and (2) preserve the record for
Further, the proponents' counsel's statement to the district court was no more than counsel's speculation as to what the circulators might aver; thus, it did not constitute a proper offer of proof. Offers of proof must be specific and definite; counsel's mere conjecture as to what the evidence might reveal does not suffice.
Here, the proponents stated only that they were in the process of obtaining new affidavits that would comply with NRS 295.0575. They gave no definite details as to what the circulators would have testified to or whether, and how many, circulators would have been able to attest to having given signers an opportunity to read the initiatives' full texts. Accordingly, the proponents failed to make a proper offer of proof to address the opportunity to review requirement in NRS 295.0575(4). To the extent that the proponents sought additional time to gather such evidence, given the speculative nature of whether the proponents would be able to obtain relevant testimony as to the signers' opportunity to read the text and the narrow time frame in which the district court had to resolve the matter, the court did not abuse its discretion in refusing to grant the proponents additional time to make their case.
Striking the signatures was the proper remedy in this case
This court has repeatedly held that when an affidavit is defective, the signatures are properly stricken.
The proponents also rely on the legislative history of NRS 295.0575, which was passed as part of A.B. 604, to argue that striking the signatures was not the proper remedy. In particular, the proponents point to statements by Assemblyman Marcus Conklin expressing concern with the idea of wholesale signature-striking.
And the proponents do not suggest any other remedy, except for their expressed hope that, if they had more time, they might have been able to obtain additional evidence of compliance. As discussed in the previous section, however, this speculation was insufficient. Striking the signatures is therefore the appropriate remedy.
NRS 295.0575 is constitutional
The proponents assert that even if their affidavits failed to substantially comply with NRS 295.0575, that statute cannot be enforced here because to do so would violate their constitutional rights. In so arguing, the proponents raise First Amendment and substantive due process challenges to NRS 295.0575 (although the latter challenge is not articulated as such). They first contend that the statute poses a severe burden on core political speech and thus must withstand strict scrutiny to be valid under the First Amendment, and they assert that the stated goals of the statute may be met by less restrictive means. Even under the more lenient flexible balancing test, they argue, the statute fails because it is not a reasonable restriction on First Amendment rights. They next contend that the statute is unconstitutional as applied in this case because the Initiative Guide was misleading; essentially, they argue that enforcing the statute in these circumstances violates substantive due process. They maintain that any inconsistency in the governing laws must be construed in their favor, thus allowing the measure to appear on the ballot.
First Amendment challenge
In Meyer v. Grant,
By the time the Court decided Buckley v. American Constitutional Law Foundation, Inc.,
The proponents in Buckley challenged six provisions of Colorado law, three of which had been upheld by the Tenth Circuit and three of which had been stricken. Those that were upheld included a requirement that the circulator sign an affidavit with his or her name, address, and a statement that the circulator has read and understands the laws governing petition circulation.
This court addressed whether to apply strict scrutiny or a less exacting flexible balancing test in Citizens for Honest Government v. Secretary of State,
Similarly, two years ago in Nevadans for Property Rights v. Secretary of State
A recent Ninth Circuit case, Lemons v. Bradbury,
Here, the circulator affidavit merely requires the circulator to make available a copy of the initiative's full text to any potential signer who wishes to review it and, after signatures have been gathered, to count them and sign an affidavit with the circulator's statement that he or she personally circulated the document and that the signatures were affixed in his or her presence, the total number of signatures gathered, and that the signers had an opportunity to review the measure's full text before signing. It does not restrict the overall quantum of speech, and it is nondiscriminatory and reasonable. Accordingly, the flexible balancing test, not strict scrutiny, applies.
Applying the flexible balancing test requires this court to weigh the restriction imposed by the circulator affidavit requirement against the interests asserted by the State to be served by it. The Sixth Circuit has pointed out that this inquiry is fact intensive: the party challenging the restriction must present evidence showing how it burdens speech, and the state must demonstrate the interests served by it.
Regarding the burdens imposed by the statute, the proponents offered little evidence in the district court of how providing an opportunity for signers to review an initiative's full text, ensuring that the document is signed in the circulator's presence, and counting signatures burden speech, simply asserting that what constitutes an "opportunity" to review the full text could be difficult for a circulator to determine. We note that the record reflects that the proponents of several other initiatives were apparently able to comply with the statute's requirements.
As for the State's interest, according to the statute's legislative history, the affidavit requirement, among other amendments passed by the 2007 Legislature, was primarily intended to prevent fraud in the signature-gathering process.
A comparison to two of the restrictions struck down by the United States Supreme Court in Buckley, as well as those noted with apparent approval, is instructive in determining whether the affidavit required by NRS 295.0575 passes constitutional muster. One of the Colorado statutes required that all circulators be registered voters; another required the circulators to wear badges with their names. The Court noted testimony in the record that requiring circulators to be registered voters severely reduced the number of people available to gather signatures.
Enforcement of NRS 295.0575 in this instance does not violate substantive due process
The proponents nevertheless contend that application of NRS 295.0575 is unconstitutional in this instance because of the allegedly misleading form in the Initiative Guide. They argue that the Secretary of State had a statutory duty to prescribe forms for the initiative process, that he failed to perform this duty when he did not update the Initiative Guide, and that the resulting inconsistency amounts to a substantial burden on political speech. It appears, however, that the crux of this claim is more accurately characterized as substantive due process rather than an as-applied First Amendment challenge: "Generally, substantive due process analysis applies when state action is alleged to unreasonably restrict an individual's constitutional rights."
For their argument that the statute is unenforceable in this instance, the proponents rely on two federal district court decisions concerning requirements that voters
The federal district court in American Civil Liberties Union v. Santillanes
Here, the proponents argue that, like Georgia in Common Cause, the Secretary of State did not sufficiently publicize the 2007 legislative amendments because they were not included in the Initiative Guide, and like the city clerk in Santillanes, the Secretary of State's enforcement of NRS 295.0575 was arbitrary and capricious because of the asserted inconsistency between the Initiative Guide and NAC 293.182, on one hand, and NRS 295.0575, on the other.
But the Initiative Guide specifically warned its readers, in bold type, that it did not have the force of law, directed its readers to review the most recent legislative amendments because the statutes were changed every legislative session, and, in the page preceding the forms appendix, noted that the 2007 legislative enactments were not reflected in the Initiative Guide because they had not yet been codified. Moreover, the statutory amendments were easily available from the Legislative Counsel Bureau, as noted in the Initiative Guide, for several months before the proponents filed their petitions and, as noted above, proponents of several other initiatives were able to access and comply with the statute. The confusion present in Common Cause, arising from the necessity of advising the entire voting population of
The Secretary of State is not equitably estopped from enforcing NRS 295.0575
The proponents assert that they justifiably relied on the Initiative Guide and therefore the Secretary of State should be estopped from enforcing NRS 295.0575. The opponents maintain that equitable estoppel does not apply against the government, and moreover, the elements of equitable estoppel are not satisfied in this case.
Equitable estoppel consists of the following elements: (1) the party to be estopped must be apprised of the true facts, (2) that party must intend that his conduct shall be acted upon or must so act that the party asserting estoppel has the right to believe it was so intended, (3) the party asserting estoppel must be ignorant of the true state of the facts, and (4) the party asserting estoppel must have detrimentally relied on the other party's conduct.
In Foley v. Kennedy, this court refused to apply equitable estoppel to an assistant registrar of voters' statement during a telephone call to a recall campaign representative, regarding the number of signatures necessary for a valid petition to recall a university regent.
More recently, in Attorney General v. Nevada Tax Commission,
Similarly, in Southern Nevada Memorial Hospital v. State,
In both of those cases, the government was estopped after having made factual representations specific to the person seeking information about a particular situation, who then relied on the representations in commencing a course of action. Here, the proponents did not rely on any factual representation by a representative of the Secretary of State that was specific to them, or indeed, any factual representation at all. The Initiative Guide was a general reference document that was not specific to any particular petition. Moreover, any reliance on this document, to the exclusion of the current statutes, was not reasonable, as the Guide contained clear disclaimers urging interested persons to contact the Legislative Counsel Bureau for the most recent statutory provisions. Finally, as in Attorney General, the Secretary of State is engaged in his statutory duty: to enforce Nevada's election laws.
We affirm the district court's decision in Docket No. 52045 to disqualify all three initiatives based on the circulators' failure to substantially comply with NRS 295.0575's affidavit requirement. We affirm in part the district court's decision in Docket Nos. 51509 and 51564, since the LVCVA permissibly participated in the court actions challenging the initiative petitions. We decline to address the remaining issues in Docket Nos. 51509 and 51564, and we dismiss the appeal in Docket No. 51639, as they are rendered moot by our decision today.