12 a3 14 as a6 7 MATIHEW M. GRIFFIN, ESQ, REC'D & FILEL Nevada Bar No. ‘The Griffin Company 2I6DEC 29 PH I: 45 401 South Curry St. Carson City, NV 89703 TH Telephone: (75) 882-4002 Email: mait@g3nv.com 8 Attorney for Defendants Nevadans for Affordable Clean Energy Choices ai ygRAL IN THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR CARSON CITY JACQUELINE SUE BIRD, an individual and ) ident of Nevada; and GAIL TUZZOLO, an ) Case No.: 16 OC 00236 1B individual and resident of Nevada, ) ) Dept No, wD Plaintiffs, ) ) vs : ORDER GRANTING BARBARA CEGAVSKE, in her Official) DEFENDANT’S MOTION TO Ci it Nevada S¢ of State; and NEVADANSFORAFFORDABLECLEAN ) DIMISS AND DENYING ENERGY CHOICES, a Nevada Political ) PLAINTIFFS’? MOTION FOR ‘Action Committee, ) SUMMARY JUDGMENT Defendants. This matter comes before the Court on Plaintifis’ Jacqueline Sue Bird and Gail Tuzzolo Complaint for Declaratory and Injunctive Relief filed October 6, 2016, challenging Defendant Nevadan’s for Affordable Clean Energy Choices (“NACEC”) initiative petition. wit20 a 22 23 24 25 26 28 I. Procedural Background. On February 3, 2016, Defendant NACEC filed the Energy Choice Initiative (“ECI”) with the Nevada Secretary of State’s Office. ECI is a citizens’ proposal to amend the ‘Nevada Constitution pursuant to Article 19 Section 2 of the Nevada Constitution. ECI ‘was certified as sufficient by the Nevada Secretary of State’s Office on July 12, 2016. ‘The Initiative was placed on the ballot for the 2016 general election. On November 8, 2016, BCI, identified as Question 3 on the General Election Ballot, received a 783,120 YES votes (72.36%) and 299,160 (27.64%) NO votes. http://silverstateelection.com/ballot-questions’. On October 6, 2016, just over # month before the election, Plaintiffs brought forth their Complaint for Declaratory and Injunctive Relief, alleging as a single cause of action that ECI is an unlawful and invalid use of the petition power under Article 19 of the ‘Nevada Constitution. Plaintiffs argument is based upon theories of Legislative prerogative and sovereignty, and claims that ECI unlawfully binds future legislatures by requiring them to take specific action, On November 4, 2016, Plaintifis filed a Motion for Summary Judgment. On November 14, 2016, Defendant NACEC filed a Motion to smiss and Motion to Extend Time to Respond to the Motion for Summary Judgment. The Secretary of State joined in Defendant NACEC’s Motions on November 17, 2016... On December 5, 2016, Plaintiffs filed their Oppositions to Defendant’s Motions. Defendant's Reply Brief in support of their motions was filed on December 13, 2016. Currently pending before the Court are Plaintiffs’ Motion for Summary Judgment and the Defendants’ two motions, the Motion to Dismiss and the Motion to Extend Time, and the Joinders thereto.10 a Fry a3 IL. Analysis. ECI proposes an amendment to the Nevada Constitution. Accordingly, it must be approved by the people at two successive general elections. Nev. Const. Art. 19, § 2(4). Having received majority approval in the 2016 General Election, Nevada's constitution requires that ECI be placed on the 2018 General Election ballot, and if it should receive a ‘majority of votes in that election, ECI will become law. Courts generally refuse, at the preelection stage, to consider challenges that the measure, if enacted, would violate substantive federal or state constitutional provisions. Herbst Gaming, Inc. v. Sec'y of State, 122 Nev. 877, 887-88, 141 P.3d 1224, 1230-31 (2006). “Preelection challenges to an initiative's substantive constitutionali are not ripe. ‘They lack a concrete factual context in which a provision may be evaluated, and any harm is highly speculative since the measure may not even pass at election time.” Matt Of TR, 119 Nev. 646, 651, 80 P.3d 1276, 1279-80 (2003). The general rules for determining ripeness were discussed by this Court in Jn re TR, 119 Nev. 646, 651, 80 P.3d 1276, 1279 (2003): (1) there is greater hardship to the parties caused by withholding judicial review, and (2) the issues are suitable for review. In Herbst Gaming, Inc. v. Heller, 122 Nev. at 882-83, the Nevada Supreme Court further elaborated how these principles apply in the specific context of challenges to initiative petitions. The court explained that challenges to initiative petitions generally fall into three distinct categories: (1) procedural challenges; (2) subject matter challenges; and (3) substantive constitutional challenges. Jd. Substantive constitutional challenges, the third category discussed in Herbst Gaming, are those that argue that the measure, should it become law, would “violate substantive federal or state constitutional provisions.” Jd., 122 Nev. at 884, 141 P.3d at26 2 28 1229. Courts will refuse to hear these kinds of challenges pre-election. Jd. The court in Herbst Gaming specifically wamed that substantive constitutional challenges could be disguised as procedural or subject matter challenges, in an attempt to gain pre-election review. Jd. ‘The Complaint in this case asserts a single challenge to the Energy Choice Initiative: that it unlawfully binds or commanders future Legislatures. Plaintiffs have asked the Court to invalidate ECI because they speculate that ifit passes it would ‘mandate that the Nevada Legislature take certain actions, which Plaintiffs assert violates the Nevada Constitution. Plaintiffs’ argument is, therefore, an allegation that ECI violates the substantive constitutional right. Accordingly, Plaintiffs seek to remedy a harm deriving from an alleged substantive constitutional violation, and the hypothetical harm from which they seek relief has not, and may never, occur. Thus, under Herbst Gaming, Plaintiffs have alleged a substantive constitutional violation that is not ripe for the Court’s consideration until after ECI receives a majority of votes at the 2018 General Election. In ruling that the instant lawsuit is not ripe, the Court notes that nothing in this decision prevents Plaintiffs from bringing this action once ECI has been passed at two successive elections and becomes law. Until such time, ECI is not law, there is no mandate, there is no potential harm, and thus there can be no legal violation. Herbst Gaming, Inc. v. Sec'y of State, 122 Nev. 877, 87-88, 141 P.34 1224, 1230-31 (2006). Mt a ii Me1.Conelusion. 2 || Plaintiffs’ Complaint alleges that ECI, if passed, would violate a. substantive |[constitutional right of the Nevada Legislature. As such, the matter is not ripe for 4 ||preelection review, and Plaintiffs may bring this action only after it has been passed at ® |Itwo successive elections, ° For these reasons, it is hereby ORDERED: 7 Defendant Nevadans for Affordable Clean Energy Choices’ Motion to Dismiss, © lland Defendant Nevada Secretary of State’s Joinder in the Motion to Dismiss, are ° ||GRANTED. 10 Plaintiffs Jacqueline Sue Bird and Gail Tuzzolo’s Motion for Summary 11 || Judgment is DENIED. v Defendant Nevadans for Affordable Clean Energy Choices’ Motion to Extend 19 ||Time is DENIED as moot under this Order, and Defendants do not need to respond to 14 I the Motion, 1s 16 DATED this_Z%t4 day of 2ofer_,2016, ” vw || : 19 20 || Submitted by: ar || —22-Fere = ap || Matthew M. Gritty Es ‘Nevada Bar No. 8097 23 |/401 South Curry Street Carson City, NV 89703 2 2s 26 27 28