ORIGINAL BRADLEY SCHRAGER, ESQ. ‘Nevada State Bar No. 10217 DANIEL BRAVO, ESQ. ‘Nevada State Bar No. 13078 WOLF, RIFKIN, SHAPIRO, su: SCHULMAN & RABKIN, LLP 3556 E. Russell Road, 2nd Floor By. Las Vegas, Nevada 89120-2234 ‘Telephone: (702) 341-5200/Fax: (702) 341-5300 Email: bschrager@wrslawyers.com Ibravo@wrslawyers.com Attorneys for Plaintiffs AN, THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR CARSON CITY JACQUELINE SUE BIRD, aa individual and resident of Nevada; and GAIL, TUZZOLO, an individual and resident of CASE NO: My COCOA FG / G Nevada, a DEPT.NO: 7 Plaintifis, vs, COMPLAINT FOR DECLARATORY BARBARA CEGAVSKE, Nevada Secretary | AND INJUNCTIVE RELIEF of State in her official capacity; and NEVADANS FOR AFFORDABLE, CLEAN ENERGY CHOICES, a Nevada ‘committee for political action advocating passage or defeat of a ballot question, Defendants. JACQUELINE SUE BIRD and GAIL TUZZOLO (hereinafter “Plaintifs”), through undersigned counsel, complain and allege as follows: INTRODUCTION 1 ‘This lawsuit seeks a declaration by this Court invalidating a proposed ballot measure amending the Nevada Constitution: 2016 Question 3, the Energy Choice Initiative (the “Initiative”). Plaintiffs also seek an injunctive preventing the Nevada Secretary of State from placing the InitiativeBen aa 10 ll 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Jon the 2018 general election ballot should it be successful at the 2016 general election.! PARTIES A. Plaintiffs 2. Plaintiff JACQUELINE SUE BIRD is a resident and elector of Lyon County, in the State of Nevada. 3. Plaintiff GAIL TUZZOLO is a resident and elector of Clark County, in the State of Nevada. B. Defendants 4, Defendant BARBARA CEGAYSKE (the “Secretary”) is Secretary of State for the State of Nevada, charged with placing upon the general election ballot measures approved by her office for consideration by the Nevada electorate, and for re-placement of ballot measures styled as constitutional initiatives if those measures pass at an initial general election. 5. Defendant NEVADANS FOR AFFORDABLE, CLEAN ENERGY CHOICES (‘NACEC") is Nevada committee for political action advocating or opposing passage of a ballot ative. JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction over this action, and venue is proper, pursuant to NRS 30.030, 33.010, and 13.020. Furthermore, the office of the Secretary is located in this |jurisdiction, and the Initiative was filed by Defendant NACEC in this jurisdiction as well. GENERAL ALLEGATIONS A. The Energy Choice Initiative 7. OnFebruary 3, 2016, Defendant NACEC filed the Initiative with the Secretary's office. 8. The Secretary subsequently certified the Initiative for placement on the 2016 general election ballot in Nevada. 9. If successful at the 2016 general election, in order to become effective the Initiative "By the time a ruling can be obtained in this action, then results of the 2016 general election will be known. At that point, either the matter will be moot because the Initiative will have been defeated, or the injunctive relief prayed for herein will be ripe because the measure will have passed and the secretary will be charged with placing it on the 2018 general election ballot. 2wor 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 }would need to pass again after the Secretary placed it upon the 2018 general election ballot. 10. The aim of the Initiative is to deregulate the energy market in Nevada. 11, However wise or unwise the policy aim of the Initiative, it unfortunately employs ‘unlawful methods within its terms to achieve its goal B. Unlawful Binding Of Future Legislatures 12. The Initiative does not itself enact legislation that achieves its stated aim. Instead, as its Description of Effect explains, it “directs the Legislature to enact legislation providing for the establishment of an open, competitive electricity market by not later than July 1, 2023.” 13, The Initiative’s Section 3(a), “Implementation,” states: Not later than July 1, 2023, the Legislature shall provide by law for provisions consistent with this Act to establish an open, competitive retail electric energy market, to ensure that protections are established that entitle customers to safe, reliable, and competitively priced electricity, including but not limited to, provisions that reduce costs fo customers, protect against service disconnections and tnfair practices, and prohibit the grant of monopolies and exclusive franchises for the generation of electricity. The Legislature need not provide for the deregulation of transmission or distribution of electricity in order to establish a competitive market consistent with this Act. (emphasis added). 14. Other provisions within the Initiative reinforce this unlawful command to future Nevada Legislatures. Section 3(b), for example, states: “Upon enactment of any law by the Legislature pursuant to this Act before July 1, 2023, and not later than that date ...,” while Section 2 states that “Effective jupon the dates set forth in subsection 3 ...” Each of these provisions of the initiative is triggered by and keyed to the unlawful command to the 2019, 2021, and 2023 Nevada legislatures to enact particular legislation, 15. _ Itisa legal commonplace that the right of the People to enact laws or amend the Nevada Constitution through direct democracy is a power coextensive with the powers of the Legislature, It [cannot exceed the legislative power. 16, The People, acting in their legislative capacity through the initiative power, cannot bind ‘or commander the legislative activities or deliberations of future Legislatures that are yet to be lawfully constituted. 17. Because, if successful at two successive general elections culminating at the 2018 3general election, the Energy Choice Initiative would seek to bind and commander the legislative prerogative of the 2019, 2021, or 2023 Nevada Legislatures—as well as that of the Executive—to enact specific legislation in keeping with the terms of the Initiative, the Energy Choice Initiative is an unlawful use of the initiative power in excess of the legislative power reserved to the People by Article 19 of the Nevada Constitution. 18. The Initiative contains a severability clause in its section 4: Should any part of this Act be declared invalid, or the application thereof to any person, thing or circumstance is held invalid, such invalidity shall not affect the remaining provisions or application of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable. This subsection shall be construed broadly to preserve and effectuate the declared purpose of this Act. Because the invalid portion of the Initiative, Section 3(b), is of such a central character that the remaining provisions of the measure cannot be given effect, however, the Initiative is not subject to severability as described in its section 4. FIRST CLAIM FOR RELIEF Declaratory Relief per NRS 30.030: invalidity of the Energy Choice Initiative 19. Plaintiffs repeat and re-allege each and every paragraph above as though they were fully set forth at length herein. 20. The Initiative represents an unlawful use of the initiative power reserved to the People of Nevada by Nev. Const. art. 19, because it seeks to bind future Legislatures to enact specific legislation. 21, Each Legislature of Nevada is sovereign and its prerogatives cannot be commandeered ‘by popular initiative. 22. The Energy Choice Initiative is an unlawful and invalid use of the initiative power, and the Court should invalidate it presently. 23. Plaintiffs are Nevada electors whose right to have only lawful ballot measures placed on the Nevada general election ballot or subsequently enacted is at risk, 24. Plaintiffs have had to engage the services of an attomey to prosecute their claims, and ‘are entitled to an award of attomey’s fees and costs for having had to do so. 4Sow rxan 12 13 14 15 16 17 18 19 20 a 2 2B 24 25 26 27 28 SECOND CLAIM FOR RELIEF Injunctive Relief Against the Secretary per NRS 33.010 25. Plaintiff’ repeat and re-allege each and every paragraph above as though they were fully set forth at length herein, 26. ‘The Energy Choice Initiative is an unlawful and invalid use of the initiative power by its proponents. 27. If successful at the 2016 general election, the secretary is charged with placing the Initiative upon the 2018 general election ballot. 28. Because it is not a lawful exercise of the Initiative power, the Secretary should be enjoined from placing the Initiative on the 2018 general election ballot. 29. Plaintiffs have had to engage the services of an attorney to prosecute their claims, and are entitled to an award of attorney's fees and costs for having had to do so. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request tht this Court: A. Declare and adjudge the Initiative invalid as described herein; B. _Issuea mandatory injunction against the Secretary of State prohibiting her from placing the Initiative on the 2018 general election ballot; C. Grant all other relief of any variety deemed necessary and proper by the Court to effectuate its judgment and remedy claims of Plaintiffs; and D. —_ Award Plaintiffs their reasonable attorney fees and costs of suit. “wy Wit a a 11 vie vitee aan aw 10 ul 12 13 14 15 16 7 18 19 20 21 2B 24 25 26 27 28 AFFIRMATION ‘The undersigned hereby affirm that the foregoing document does not contain the social security number of any person, DATED this 6th day of October, 2016. WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP fOseF Byg \DLEY SCHRAGER,, Nevada State Bar No. 102 DANIEL BRAVO, ESQ. Nevada State Bar No. 13078 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 Attorneys for Plaintiff