ED. FREEDOM PAC v. REID (BALLOT ISSUE)
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Legislature must establish an eligibility criteria for parents to establish an account. The initiative will result in the expenditure of state funds to fund the accounts in an amount comparable to the public support that would be used to support the education of the child for whose benefit the account has been established in a public school. For Fiscal Year 2021-2022, the Legislature determined the statewide base per pupil amount to be $6,980 per pupil. For Fiscal Year 2022-20238, that amount is $7,074 per pupil. Generating the revenue to fund the accounts could necessitate a tax increase or a reduction in government services. The Legislature must establish the program by the start of the school year that commences in 2025. Respondents Rory Reid and Beverly Rogers (collectively referred to as Reid) filed a complaint for declaratory and injunctive relief challenging the initiative in the district court. On the same day Reid filed his complaint, the assigned district court judge recused himself. Nine days later, Senior Judge Charles McGee was assigned to handle the matter, after Reid exercised a peremptory challenge on the remaining district court judge. EFP then intervened in the matter and filed an answer and a brief challenging the district court’s authority to hear the matter given that no hearing had been set within 15 days, as is statutorily required. Thirty days after Reid filed his complaint, the district court set the matter for a hearing. After the hearing, the court entered an order enjoining EFP from circulating the initiative petition for signatures and enjoining respondent Secretary of State from including the initiative on the ballot. First, the district court concluded that while the hearing had not been set within 15 days after the complaint was filed, dismissal was unnecessary because the hearing was expedited to the best of the court's ability. Second, the court concluded the initiative was invalid for three SuPREME CourT OF NEVADA (0) 147A circumstances prevented the district court from timely setting the hearing, and the district court set the hearing as quickly as those circumstances permitted and without excessive delay. Accordingly, because the 15-day requirement for setting the hearing is directory, and considering the special circumstances of this case, the district court did not err in denying EFP’s request to dismiss the complaint. The district court properly enjoined the EFP initiative’s circulation and placement on the ballot Next, we consider the district court’s decision to enjoin the circulation of the initiative petition for signatures and to enjoin the Secretary of State from placing the initiative on the ballot. This court reviews de novo a district court’s order granting injunctive and declaratory relief. Educ. Initiative PAC v. Comm. to Protect Nev. Jobs, 129 Nev. 35, 41, 293 P.3d 874, 878 (2013). The initiative fails to comply with constitutional requirements EFP argues that its initiative did not need to comply with Article 19, Section 6 of the Nevada Constitution regarding unfunded mandates, and regardless, it complied with that section because the initiative does not include any expenditures or appropriations and leaves it to the Legislature to fund the education freedom accounts. All initiatives must comply with Article 19, Section 6 EFP contends that it did not have to comply with the requirement to include funding provisions because it proposed only a constitutional change. We disagree. Article 19, Section 2 of the Nevada Constituticn provides that “subject to the limitations of Section 6 of this Article, the people reserve to themselves the power to propose, by initiative petition, statutes and amendments to statutes and amendments to this constitution, and to enact SUPREME Court OF NEVADA 8 (0) 147A ERB or reject them at the polls.” Section 6 provides that Article 19 “does not permit the proposal of any statute or statutory amendment which makes an appropriation or otherwise requires the expenditure of money, unless such statute or amendment also imposes a antticlent tax, not prohibited by the Constitution, or otherwise constitutionally provides for raising the necessary revenue.” Nev. Const. art. 19, § 6. “This court reviews questions of constitutional interpretation de novo.” Ramsey v. City of North Las Vegas. 133 Nev. 96, 98, 392 P.3d 614, 616 (2017). “Constitutional interpretation utilizes the same rules and procedures as statutory interpretation.” Landreth v. Malik, 127 Nev. 175, 180, 251 P.3d 163, 166 (2011). This court will first look to the plain meaning of the constitutional provision, and only if it is ambiguous will this court “look to the history, public policy, and reason for the provision.” Jd. A constitutional provision is ambiguous if “it is susceptible to two or more reasonable but inconsistent interpretations.” Jd. (internal quotation marks omitted). Additionally, an internal conflict within the constitutional provision’s language can render it ambiguous. Orion Portfolio Servs. 2, LLC v. County of Clark ex rel. Univ. Med. Ctr. of S. Nev., 126 Nev. 397, 402, 245 P.3d 527, 531 (2010). Further, much like when the court construes statutes, in construing constitutional provisions, this court must consider the multiple provisions of the constitutional article as a whole. See, e.g., id. at 403, 245 P.3d at 531 (providing that when this court engages in statutory interpretation, it must “consider the statute’s multiple legislative provisions as a whole” (internal quotation marks omitted)). We conclude that Article 19, Section 6 is ambiguous because it conflicts internally with Article 19, Section 2. Article 19, Section 2 provides that all initiative petitions, regardless of whether they propose statutory or constitutional changes, are subject to Article 19, Section 6’s requirement to SUPREME GourT OF NEvaDA 9 (0) 1947A to accomplish the initiative’s proposed change. “If the people have the power to enact a measure by initiative, they should do so directly ....” Am. Fed’n of Lab. v. Eu, 686 P.2d 609, 627 (Cal. 1984). By directing the Legislature to enact laws in accordance with the change proposed in the initiative petition, the initiative impairs the Legislature’s deliberative function. The Legislature no longer has the discretion to determine whether the enactment of laws giving effect to the initiative’s proposed change is proper, warranted, or in the best interest of each individual legislator’s constituents. EFP proposes a constitutional amendment that merely directs the Legislature to enact laws creating education freedom accounts with unspecified eligibility criteria and funding sources. Not only does this impede the Legislature’s inherent discretion in adopting or amending laws, but it places an unclear change in front of the electorate by not providing how the proposed change will be effectuated. Such initiative petitions are not a permissible exercise of the people’s initiative power. Accordingly, we conclude the district court properly declared the underlying initiative void as impairing the Legislature’s deliberative function. CONCLUSION The district court did not err in denying EFP’s request to dismiss Reid’s challenge to the initiative petition based on the court’s noncompliance with NRS 295.061(1)’s 15-day hearing-setting requirement, as that requirement is directory rather than mandatory. Additionally, the district court did not err in enjoining the circulation of the initiative petition or in enjoining the Secretary of State from placing the initiative on the ballot. All initiative petitions must comply with Article 19, Section 6 of the Nevada Constitution, which demands that any initiative requiring an appropriation or expenditure must also include a funding - provision. 17 Because EFP’s initiative does not include funding provisions, it is an unfunded mandate and is void. Further, EFP’s description of effect rendered the initiative void because it was misleading about the impact the proposed change would have on the state’s budget. Lastly, the initiative would impair the Legislature’s inherent deliberative function because it directs the Legislature to enact statutes to effect its goal rather than proposing those laws itself. Accordingly, the initiative is void, and we affirm the district court’s injunction. PN ck 4 Hardesty We concur: Parraguirre AA, a g , oi Stiglich SuPREME Court OF NEVADA 18 (0) 19474 HERNDON, J., with whom PICKERING, J., agrees, concurring in part and dissenting in part: While I concur with the majority’s conclusion that NRS 295.061(1)’s 15-day requirement to set a hearing on an initiative challenge is directory, and that the district court properly denied the request to dismiss the complaint under these circumstances, I write separately because I would reverse the district court’s order on its merits. First, under the plain language of Article 19, Section 6 of the Nevada Constitution, its funding mandate applies only to initiative petitions proposing statutes or statutory amendments, not to initiatives proposing constitutional amendments. Second, the description of effect here was statutorily sufficient in that it explained the initiative’s goal within the 200-word limit without being misleading. Third, there is no precedent precluding initiatives from proposing constitutional amendments that direct the Legislature to enact laws, and respondents did not provide persuasive argument to support adopting such a precedent. Thus, I respectfully dissent. Article 19, Section 6 applies only to initiatives proposing statutory changes Any evaluation of Article 19, Section 6 must be done by reading it in harmony with Article 19, Section 2(1). Article 19, Section 2(1) provides that “the people reserve to themselves the power to propose, by initiative petition, statutes and amendments to statutes and amendments to this Constitution, and to enact or reject them at the polls.” Nev. Const. art. 19, § 2(1). This language establishes the people’s right to engage in three distinct, initiative-based actions: (1) to propose statutes, (2) to propose amendments to existing statutes and (3) to propose amendments to our state constitution. Article 19, Section 6 expresses a restriction on the SuPREME Court OF NEVADA (0) 147A SRB initiative process. It “does not permit the proposal of any statute or statutory amendment which makes an appropriation or otherwise requires the expenditure of money, unless such statute or amendment also imposes a sufficient tax, not prohibited by the Constitution, or otherwise constitutionally provides for raising the necessary revenue.” Nev. Const. art. 19, § 6 (emphasis added). This court has very clearly held that when a constitutional provision is unambiguous, the court will apply it according to the plain language of the provision. Nevadans for Nev. v. Beers, 122 Nev. 930, 942, 142 P.3d 339, 347 (2006). Here, the plain language of Section 6 is unambiguous and clearly singles out two distinct initiative-based actions available to the people: proposals for new statutes and proposals for amendments to existing statutes; while specifically excluding a third initiative-based action available to the people: proposals to amend the constitution. The majority broadens Section 6’s application by fashioning a conflict between Sections 2 and 6 that does not exist. Section 2 outlines the requirements for all initiative petitions. Thus, its application is intentionally broad. Section 6 discusses a limitation for initiative petitions that applies to those proposing statutory changes only. Its application is therefore very specific. As we have repeatedly recognized, when “a general statutory provision and a specific one cover the same subject matter, the specific provision controls.” In re Resort at Summerlin Litig., 122 Nev. 177, 185, 127 P.3d 1076, 1081 (2006). The same interpretive rule applies here. See Landreth v. Malik, 127 Nev. 175, 180, 251 P.3d 163, 166 (2011) (“Constitutional interpretation utilizes the same rules and procedures as statutory interpretation.”). The fact that Section 6 specifically applies only to initiatives proposing statutory changes does not create a conflict. with the broader provisions of Section 2. SUPREME Court OF NEVADA (0) 147A EBRD . 2 Furthermore, the majority ignores another long-standing canon of statutory interpretation: “expressio unius est exclusio alterius, ‘the expression of one thing is the exclusion of another.” Poole v. Nev. Auto Dealership Invs., LLC, 135 Nev. 280, 285, 449 P.3d 479, 483-84 (Ct. App. 2019). By limiting its application to “any statute or statutory amendment,” Section 6, excludes initiatives proposing constitutional changes. This reading harmonizes Section 6 with the rest of Article 19, which distinguishes between petitions proposing statutory changes and those proposing constitutional changes. ‘See, e.g., Nev. Const. art. 19, § 2(3) (setting forth the process for an initiative petition that “proposes a statute or an amendment to a statute”); id. § 2(4) (setting forth the process for an initiative petition that “proposes an amendment to the Constitution”). Thus, Article 19, Section 6 is unambiguous and can only be interpreted as applying to initiatives proposing statutory changes. Even assuming Section 6 is ambiguous, its history supports limiting Section 6 to proposals to enact or amend statutes, not proposals to amend the constitution. See Strickland v. Waymire, 126 Nev. 230, 234, 235 P.3d 605, 608 (2010) (noting that “[t]he goal of constitutional interpretation is to determine the public understanding of a legal text leading up to and in the period after its enactment or ratification” (internal quotation marks omitted)). Section 6 was added to the Nevada Constitution by popular vote in 1972. The draft amendment originated in the 1969 Nevada Leyislature as Senate Joint Resolution 1. The first draft was written broadly to apply to both proposals for constitutional amendments and to proposals to enact or amend statutes. S.J.R. 1, 55th Leg. (Jan. 20, 1969) (“[t]he provisions of this article do not apply to any measure which ... makes an appropriation or by its operation requires the expenditure of money”). After discussion, SuPREME CourT OF NEVADA (0) 1947A the draft language was narrowed to read, “[t]his article does not permit the proposal of any statute or statutory amendment which makes an appropriation or otherwise requires the expenditure of money unless such statute or amendment also imposes a sufficient tax, not prohibited by the Constitution, or otherwise constitutionally provides for raising the necessary revenue.” S.J.R. 1, 55th Leg. (Jan. 20, 1969) (First Reprint). It was in this form that what became Section 6 was submitted to and approved by the voters. And the ballot submitting the addition of Section 6 to the constitution made expressly clear that this limitation on the people’s reserved initiative rights only applied to initiatives proposing to enact or amend statutes, not proposals to amend the constitution. Secretary of State, Constitutional Amendments to Be Voted on in the State of Nevada at the General Election, Nov. 7, 1972, Question No. 5, 21. Thus, the 1972 explanation of Article 19, Section 6 on the ballot stated that the new section would “prohibit an initiative petition proposing any statute which makes an appropriation or requires an expenditure of money, unless the same proposal contains a sufficient valid tax to raise the necessary revenue.” Id. (emphasis added). Given its text and history, I cannot agree with the majority’s conclusion that this court’s perception of sound public policy allows us to read Section 6 as applying to all initiatives. Because a state constitution is meant to be a basic set of laws and principles that set out the framework of the state’s government, including a funding provision for each specific basic law and principle within that document would be inappropriate. Additionally, constitutional provisions generally provide certain rights or requirements and then rely on the Legislature to adopt iaws to facilitate those provisions, which may include measures for funding. Thus, the SuPREME Court OF NEVADA 4 (0) 19474