TAXPAYERS FOR THE PROTECTION ) Supreme Court Case No OF NEVADA JOBS, a Nevada ) Respondents. )

Transcription

1 IN THE SUPREME COURT OF THE STATE OF NEVADA TAXPAYERS FOR THE PROTECTION Supreme Court Case No. OF NEVADA JOBS, a Nevada Non-profit organization, Electronically Filed Jul 1 1 0: p.m. Appellant, Tracie K. Lindeman vs. Clerk of Supreme Court ARENA INITIATIVE COMMITTEE, an organized Nevada Ballot Advocacy Group, BRUCE L. WOODBURY, an Individual, in his capacity as the sole Officer of the Arena Initiative Committee ROSS MILLER, in his capacity as Secretary of the State of Nevada; and DOES 1 through, inclusive, Respondents. TAXPAYERS FOR THE PROTECTION Supreme Court Case No. 0 OF NEVADA JOBS, a Nevada Non-profit organization, Appellant. vs. ROSS MILLER, in his capacity as Secretary of State of the State of Nevada; ARENA INITIATIVE COMMITTEE, an organized Nevada Ballot Advocacy Group, Respondents. APPELLANT S ANSWER TO RESPONDENTS ARENA INITIATIVE COMMITTEE AND BRUCE L. WOODBURY S CROSS-PETITION FOR REHEARING Appellant, Taxpayers For The Protection Of Nevada Jobs ( Taxpayers, hereby files its Answer to Respondents, Arena Initiative Committee and Bruce L. Woodbury s (collectively, the Committee Cross-Petition for Rehearing, filed on June, 1 ( Cross-Petition, as directed by this Court s Order Directing Answer to Cross-Petition for Rehearing, issued July, 1. Page 1 of 1 Docket Document 1-

2 INTRODUCTION In its June, 1, Order Affirming in Part, Reversing in Part and Remanding ( Order, this Court found that the Arena Initiative s (the initiative description of effect ( Description of Effect is deceptive and materially misleading and does not comply with Nevada law, including Nevada Revised Statute ( NRS.00, because: 1. It fails to reveal the ramifications to the competing arena proposals; and. It fails to inform voters of the precise location of the proposed arena. 1 The Committee has requested rehearing as to this Court s conclusion that the initiative s Description of Effect is defective. Cross-Petition at. In doing so, the Committee asserts that Nevada Rule of Appellate Procedure ( NRAP 0(c( authorizes rehearing because this Court erred in three areas: 1. This Court overlooked or misapprehended a material fact in the record;. This Court overlooked or misapprehended a material question of law in the case; and. This Court overlooked, misapplied or failed to consider decisions directly controlling a dispositive issue in this case. The Committee makes these assertions even though all of the issues raised in the Cross-Petition were argued extensively in the District Court and before this Court. The Cross-Petition offers nothing new and the Committee seeks to revisit these arguments only because it lost. The Committee raises no new legal issues 1 Notably, the Committee only requested rehearing as to this Court s finding that the Description of Effect is deceptive and materially misleading because it fails to reveal the ramifications to the competing arena proposals. The Committee did not request rehearing as to the finding that the Description of Effect fails to inform voters of the precise location of the proposed arena. This Court more specifically found that the initiative s Description of Effect was materially misleading and deceptive. Order at. Page of 1

3 and absolutely no new factual issues that were not before this Court when it declared the Description of Effect deceptive and materially misleading. Nor does the Committee establish, as required by NRAP 0, that this Court overlooked or misapprehended a material fact in the record, overlooked or misapprehended a material question of law in the case, or overlooked, misapplied or failed to consider decisions directly controlling a dispositive issue in this case. Therefore, in order to grant the relief requested in the Cross-Petition, this Court must concede that each and every member of this Court reached the wrong conclusion in its Order, based upon the facts and arguments in the record. Taxpayers assert that no such concession is warranted and that the Committee has not demonstrated that this Court erred in any way, as claimed in the Cross-Petition. Rather, the Committee s Cross-Petition is merely an attempt to re-argue this Court s reasoned decision with regard to the Description of Effect. Accordingly, this Court should deny the relief requested by the Respondents in their Cross-Petition. ARGUMENT I. The Committee s Argument I: This Court overlooked or misapprehended that the record clearly establishes the undisputed fact that, under current conditions, over 1,00 acres of land meet the location criteria of the Arena Initiative, and, within that area, there are multiple sites available for immediate construction. The Committee is correct: the record clearly establishes the undisputed fact that, under certain conditions, over 1,00 acres of land meet the location criteria of the initiative. It is precisely because of the failure to describe the effect of those certain conditions that this Court found the Description of Effect did not disclose that the initiative would effectively prohibit all competing arena proposals, and was, therefore, deceptive and materially misleading. Order at. This Court recognized that, as drafted, [s]tatewide voters would assume that the other proposed arenas would qualify under this initiative, Order at, when in reality, they do not. Page of 1

4 For example, during the District Court hearing, a witness was queried as to how many locations the petition could apply. The answer was four or five. (J.A. at Vol II, 00. However, of the four or five, the record established that the Committee s sole financial backer owned all but the Wynn golf course and the El- Ad property. (J.A. at Vol II, 00. Additionally, the location of a qualifying arena is restricted by multiple criteria within the initiative. The Committee applies only one of those criteria, the requirement that a qualifying arena be built within two miles of,000 hotel rooms, to support its argument that there are 1,00 acres in which a qualifying arena could be built. Its argument completely ignores the other criteria. Even then, the suggestion that there are other feasible sites is pure speculation, as the owners of those sites (other than the Committee s sole financial backer have expressed zero interest in imploding existing buildings or tearing out existing golf courses (the Wynn golf course is one of the potential sites to which the Committee refers and donating (one of the other criteria for a qualifying arena their land for the construction of an arena. The fact is that the initiative s multiple criteria for a qualifying arena surgically eliminate all of the competing arena proposals, leaving only one of the proposed arena sites, the one proposed by the Committee, that meets all of the requirements. The Committee is merely attempting to re-argue this point, contrary to NRAP 0. This Court has already found that the initiative s Description of Effect deceptively hid effects and misled the voters. There is nothing in the record to change any facts, arguments, issues or possibilities that would lead to a reversal of the unanimous recognition of the Committee s deceptive tactics. / / / / / / / / / / / / / / / / Page of 1

5 II. The Committee s Argument II: The Arena Initiative ties the arena location to criteria, as opposed to particular property, and circumstances affecting the application of the criteria may change, thereby altering the available arena locations. The Committee asserts: [t]he potential changes in location was (sic a fact that was overlooked or misapprehended in the Order s requirement that the Description of Effect state that only one location was available for the arena under the terms of the initiative. Cross-Petition, at. This is not correct. The Committee argues that the gaming enterprise district could be expanded by the County Commission. This is incorrect. The only way to expand the gaming enterprise district is through the state legislature. NRS.0 sets forth the exact boundaries of the gaming enterprise district within the Las Vegas Strip corridor. Any expansion of that is not within the County s purview: it can only be accomplished by the Legislature. Page of 1 This Court did not overlook or misapprehend that circumstances may change. This Court, based upon the evidence in the record, decided that the likelihood of those changes occurring was so unrealistic that it rejected the argument. The Committee is merely grasping at straws. The Committee argues that portions of Las Vegas could be de-annexed into Clark County, thereby, expanding the area. This theory is flat out impossible. Nevada law does not allow for de-annexation in counties with population over 00,000. It does allow for minor de-annexation in counties with population under 00,000, under NRS.. In order for a property in the City of Las Vegas to move out of Las Vegas and into Clark County (the qualifying arena criteria require that it be in the unincorporated area, the ENTIRE City would have to go through the disincorporation process set forth in NRS. through The Committee s request is based upon a presumption that this Court agrees with the Committee s first argument and reverses its decision that the Description of Effect was deceptive and materially misleading. As stated above, there is no basis for such a reversal of its Order.

6 NRS.. Arguing that the petition could apply to other properties if the City of Las Vegas decided to disincorporate is unfathomable. Equally absurd is the argument that converting a use of property to allow for an arena is a possibility. The evidence in the record shows that such a task would consist of things such as: 1 Mr. Wynn and his board of directors volunteering to rip out their golf course for an arena (J.A. at Vol II, 00; El-Ad giving away their acres for which they paid $1 billion (J.A. at Vol II, 00; or imploding the Wynn or the MGM Grand. (J.A. at Vol II, 00. Finally, the Committee argues that more rooms could be built. Such an argument is equally a stretch, as the evidence before this Court shows that the threshold room requirement is so restrictive that certain major resort properties do not meet the room proximity requirement. The Committee is doing anything it can to get this Court to reconsider its conclusion with regard to the Description of Effect, but has offered no new evidence or arguments that would justify such reconsideration. NRAP 0. III. This argument utterly fails to satisfy the requirements of The Committee s Argument III: The description of effective must be evaluated in the context of the Arena Initiative s circulation. In this argument, the Committee objects to footnote of the Order where this Court indicated that the modified Description of Effect need not include reference to the Legislative session. The Committee argues that the reference to the Legislative session was not superfluous at the time the initiative was circulated; therefore, it was properly included in the Description of Effect and should remain. The Committee does not identify where this Court overlooked or misapprehended a material fact in the record, overlooked or misapprehended a material question of law in the case, or overlooked, misapplied or failed to consider decisions directly controlling a dispositive issue in this case. The Committee Page of 1

7 merely objects to removing the language referencing the Legislative session. The requirements of NRAP 0 are not even remotely satisfied with this argument. IV. The Committee s Argument IV: This Court has not previously mandated that a description expressly identify subjects which are excluded from the scope of an initiative, and therefore, the Order should be modified accordingly. As support for this argument, the Committee states that: Taxpayers have identified no case invalidating a description of effect on the sole basis that it does not expressly explain what is excluded from an initiative and argue that the finding that the description specifically and expressly identify excluded projects is without precedent, contrary to this Court s jurisprudence, and a mischaracterization of the Arena Initiative as an affirmative, not prohibitive, measure. Cross-Petition at 1-1. The Committee completely misunderstands the Order. First, the Order identified two reasons for the finding that the Description of Effect was deceptive and materially misleading: 1 it fails to reveal the ramifications to the competing arena proposals; and it fails to inform voters of the precise location of the proposed arena. Both are valid and each individually is a sufficient basis for the finding that the Description of Effect is deceptive and materially misleading. Second, this Court did not invalidate the Description of Effect because it failed to expressly explain what is excluded from the initiative. This Court invalidated the Description of Effect because it did not disclose all of the material ramifications of the initiative. That is a far cry from invalidating a description of As an aside, the Committee s allegation on page of the Cross-Petition that [t]he Order does not state, nor can it be reasonably interpreted to state, that any of the description s content is inaccurate when this Court s Order specifically found the Description of Effect to be deceptive and materially misleading reflects a genuine misunderstanding of the terms deceptive and materially misleading. The Committee even admits that Clark County can only select one arena if multiple sites are chosen, a fact not disclosed in the Description of Effect. Cross- Petition at. Page of 1

8 effect because it did not expressly explain what was excluded. Read correctly, the Order does not do what the Committee asserts it does. Further, the Committee s claim of a lack of precedent is just flat out wrong. This Court has struck down both initiatives and referenda that did not disclose their material ramifications, even where those material ramifications were not part of the actual language of the initiative or referendum itself. In Las Vegas Taxpayer Accountability Committee v. City of Las Vegas, 1 Nev., P.d (0, this Court stated: We agree with the district court that the description of effect materially fails to accurately identify the consequences of the referendum s passage. In that case, this Court specifically considered not only the language of both the initiative and referendum that were at issue in that case, but also the effects. The initiative at issue, in part, designated the voters of Las Vegas as the City s legislative body, as that term is used in certain redevelopment statutes. 1 Nev., P.d,. This Court concluded that this provision would have the effect of requiring voter approval for key aspects of the redevelopment planning process under Nevada law.... Id. (Emphasis added.. In rejecting the referendum, this Court upheld the District Court s finding that the true effect of the referendum would be to completely terminate the redevelopment plan and, consequently, to impair outstanding securities issued by the Redevelopment Agency. Based on this finding, this Court concluded that the description of effect included with the referendum was misleading, stating that it agreed with the district court that the description of effect materially fails to accurately identify the consequences of the referendum s passage. 1 Nev., P.d at 1. Similarly, in Nevada Judges Association v. Lau, Nev. 1, P.d (, this Court reviewed an initiative that established term limits for elected officials. Id. at. The explanation of the initiative failed to make clear the different effects on elected officials depending on their branch of government. Id. Page of 1

9 at 0. In particular, only judicial positions received no explanation in terms of total years of service. Id. at. This Court upheld a challenge to the petition on the grounds that failure to disclose such ramifications could have been misleading. Id. at 0. The Committee s argument does not satisfy the requirements of NRAP 0 because it does not establish that this Court overlooked or misapprehended a material fact in the record, overlooked or misapprehended a material question of law in the case, or overlooked, misapplied or failed to consider decisions directly controlling a dispositive issue in this case. In fact, as discussed above, this Court s Order followed prior jurisprudence. CONCLUSION This petition has been deceptive and misleading since the day it was filed with the Secretary of State s office. By failing to disclose the effects of the petition to potential signers, the petition proponents have obtained signatures in violation of Nevada law. The Committee included a number of criteria which really have nothing to do with making an arena location successful, but rather were designed to result in only the proponents site being viable. The proponents could have accomplished the same thing by using streets to define the boundaries of a permissible site and then everyone would have understood the location that was intended to benefit from this initiative. The Committee made the policy choice to not do that. The consequence of that choice is that they must explain its effects to the voters. They have not done that. Finally, none of the Committee s arguments provide a sufficient basis under NRAP 0 to grant rehearing. This Court did not overlook or misapprehend a material fact in the record. This Court did not overlook or misapprehend a material question of law in the case. This Court did not overlook, misapply, or fail to consider decisions directly controlling a dispositive issue in this case. This Court reached a conclusion that the Committee does not like. There is absolutely no Page of 1

10 justification for a rehearing based upon the arguments provided in the Cross- Petition. Therefore, this Court should deny the Cross-Petition. RESPECTFULLY SUBMITTED this 1 th day of July, 1. HOLLAND & HART LLP By: /s/ Scott Scherer Scott Scherer, Esq. Nevada Bar No. 000 E. William Street, Suite 0 Carson City, Nevada 01 Telephone: ( -00 Attorneys for Appellant Unlike the Committee, Taxpayers did not believe it was appropriate to reargue the case, and has attempted to confine its points to answering the Cross-Petition. Moreover, Taxpayers did not seek rehearing of this case with regard to its other arguments because it did not believe that it would materially alter the outcome of the case. For example, this Court did not address the Committee s admission that many of the petitions were circulated in teams and not personally circulated as required by NRS.0. Should this Court grant a rehearing, and because the Committee requests to re-argue issues that have already been resolved by this Court, Taxpayers respectfully requests that it be a full rehearing, and that Taxpayers be given sufficient time to once again address the merits of the entire case and Taxpayers request oral argument of same. Page of 1

11 CERTIFICATE OF COMPLIANCE PURSUANT TO RULES 0 AND 0A 1. I hereby certify that this Answer complies with the formatting requirements of NRAP (a(, the typeface requirements of NRAP (a( and the type style requirements of NRAP (a( because: This Answer has been prepared in a proportionally spaced typeface using Word 0 in font size 1 Times New Roman.. I further certify that this Answer complies with the page- or type-volume limitations of NRAP (a( because, excluding the parts of the brief exempted by NRAP (a((c, it is: Proportionately spaced, has a typeface of 1 points or more, and contains,1 words.. Finally, I hereby certify that I have read this Answer, and to the best of my knowledge, information, and belief, it is not frivolous or interposed for any improper purpose. I further certify that this Answer complies with all applicable Nevada Rules of Appellate Procedure, in particular NRAP (e(1, which requires every assertion in the brief regarding matters in the record to be supported by a reference to the page and volume number, if any, of the transcript or appendix where the matter relied on is to be found. I understand that I may be subject to sanctions in the event that the accompanying brief is not in conformity with the requirements of the Nevada Rules of Appellate Procedure. Dated this 1th day of July, 1. HOLLAND & HART LLP By: /s/ Scott Scherer Scott Scherer, Esq. Nevada Bar No. 000 E. William Street, Suite 0 Carson City, Nevada 01 Telephone: ( -00 Attorneys for Appellant

12 I, Teresa A. Williams, declare: PROOF OF SERVICE I am employed in Carson City, State of Nevada, by the law offices of Holland & Hart LLP. My business address is E. William Street, Carson City, Nevada 01. I am over the age of years and not a party to this action. On July 1, 1, I electronically filed the foregoing APPELLANT S ANSWER TO RESPONDENTS CROSS-PETITION FOR REHEARING with the Clerk of the Supreme Court of Nevada, via the Court s e-flex system. I certify that all participants in the case are registered e-flex users and that service will be accomplished by e-flex on the following: Jason D. Woodbury Severin A. Carlson Kaempfer Crowell Renshaw Gronauer & Fiorentino jwoodbury@kcnvlaw.com scarlson@kcnvlaw.com Attorneys for Arena Initiative Committee Catherine Cortez Masto, Attorney General Kevin Benson, Senior Deputy Attorney General Nevada Attorney General s Office KBenson@ag.nv.gov ldeming@ag.nv.gov Attorneys for Secretary of State Ross Miller I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that this declaration was executed on July 1, 1. /s/ Teresa A. Williams An Employee of Holland & Hart LLP