- 138 Nev., Advance Opinion U (9
IN THE SUPREME COURT OF THE STATE OF NEVADA
BARBARA K. CEGAVSKE, IN HER No. 84420
OFFICIAL CAPACITY AS NEVADA
SECRETARY OF STATE,
Appellant,
vs.
ROBERT HOLLOWOOD, AN FILED
INDIVIDUAL; KENNETH BELKNAP,
AN INDIVIDUAL; NEVADANS FOR
FAIR GAMING TAXES PAC, A
NEVADA COMMITTEE FOR
POLITICAL ACTION; FUND OUR
SCHOOLS PAC, A NEVADA
COMMITTEE FOR POLITICAL
ACTION; NEVADA RESORT
ASSOCIATION, A NEVADA
NONPROFIT CORPORATION;
GREATER LAS VEGAS CHAMBER OF
COMMERCE, D/B/A VEGAS
CHAMBER, A NEVADA NONPROFIT
CORPORATION,
Respondents.
Appeal from a district court order granting writs of mandamus
and prohibition barring the Secretary of State from placing initiative
petition questions on the ballot. First Judicial District Court, Carson City;
James E. Wilson, Judge.
Affirmed in part and reversed in part.
Great Basin Law and Wayne O. Klomp, Reno,
for Appellant.
Supreme Couat
OF
NEVADA 22 ° 203 q 7
(0) 16M7A ERB
Supreme Court
or
Nevaba
(0) 147A GEER
a a a a
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Bradley S. Schrager,
Daniel Bravo, and Eric Levinrad, Las Vegas; McLetchie Law and Margaret
A. McLetchie, Las Vegas,
for Respondents Robert Hollowood, Kenneth Belknap, Nevadans for Fair
Gaming Taxes PAC, and Fund Our Schools PAC.
Lewis Roca Rothgerber Christie LLP and Joel D. Henriod, Daniel F.
Polsenberg, Abraham G. Smith, and Kory J. Koerperich, Las Vegas,
for Respondents Nevada Resort Association and Greater Las Vegas
Chamber of Commerce.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, STIGLICH, J.:
This appeal involves two verified initiative petitions to place
questions on the ballot for the Nevada 2022 general election and the
sponsors’ withdrawal of the initiative petitions. Although Nevada law
provides a procedure to withdraw an initiative petition and directs that “no
further action may be taken on [a withdrawn] petition,” NRS 295.026(2),
Secretary of State Barbara Cegavske refused to honor the withdrawals of
the two petitions at issue here. The sponsors then sought and obtained
writs of mandamus and prohibition from the district court to compel her to
recognize the withdrawals and thereby prevent the questions from
appearing on the 2022 ballot. The Secretary of State appeals, arguing that
the statute setting forth the withdrawal procedure, NRS 295.026, is
unconstitutional. We conclude that NRS 295.026 is a permissible exercise
of the Legislature’s power to enact statutes to facilitate the people’s
initiative power and is thus not unconstitutional. Because the statute
2
compels the Secretary of State not to act on the withdrawn initiative
petitions, the district court properly issued a writ of mandamus compelling
the Secretary not to act. But because the act of placing matters on a ballot
is ministerial, it is not the sort of action that is subject to prohibition, and
therefore the district court abused its discretion in issuing a writ of
prohibition. We thus affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
Respondents Robert Hollowood, Kenneth Belknap, Nevadans
for Fair Gaming Taxes PAC, and Fund Our Schools PAC sponsored two
initiative petitions for the purposes of funding education via an increase in
Nevada sales tax and a tax on gaming. The initiative petitions listed
Hollowood and Belknap as among the three individuals permitted to
withdraw or amend each initiative petition. The sponsors obtained the
required signatures and submitted them to the Secretary of State, who
verified them and submitted the initiative petitions to the Legislature for
consideration. The Legislature did not act on the initiative petitions but did
reach an agreement to otherwise increase taxes to fund education.
Thereafter, Hollowood and Belknap each filed a petition withdrawal form
with the Secretary of State’s office.
On request from the Governor’s office, the Attorney General
issued an opinion as to whether the Nevada Constitution prevents initiative
petition sponsors from withdrawing a petition. The Attorney General
opined that it did not. 2021-04 Op. Att’y Gen. The opinion (1) framed the
Secretary of State’s role as ministerial, (2) found no constitutional
provisions limiting withdrawal of an initiative petition such that there was
no direct conflict between the constitution and the statute, (3) interpreted
NRS 295.026 as imposing a procedural right permitting sponsors to
withdraw a petition, and (4) concluded that the Secretary’s duty to place a
Supreme Court
OF
Nevapa
3
(0) 1N7A <<
SS a a rey
matter on the ballot was owed to the sponsors and would be waived by the
sponsors’ withdrawal of the petition. Jd.
The Secretary disagreed with the Attorney General opinion,
concluded that she had a constitutional duty to place verified initiative
petitions on the ballot, and thus refused to recognize the sponsors’
withdrawal. The sponscrs petitioned the district court for writs of
mandamus and prohibition. Respondents Nevada Resort Association and
Greater Las Vegas Chamber of Commerce successfully moved to intervene
and joined in the petition. The district court concluded that NRS 295.026
permissibly expands initiative sponsors’ rights by providing a clear
procedure and deadlines to withdraw a petition. The court further held that
the Secretary’s duty to place a matter on the ballot presupposed a valid
petition and that a withdrawal consistent with NRS 295.026 makes the
petition void and thus no longer valid, such that there was no further action
for the Secretary to take. The district court therefore issued writs of
mandamus and prohibition. The Secretary of State appeals.
DISCUSSION
A writ of mandamus may be sought to compel the performance
of an act that the law requires as a duty resulting from an office, trust, or
station or to control an arbitrary or capricious exercise of discretion. NRS
| 34.160; State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931,
267 P.3d 777, 779 (2011). A writ of prohibition may issue if an individual
exercising judicial functions or a tribunal acts in excess of its jurisdiction.
NRS 34.320; Goicoechea v. Fourth Judicial Dist. Court, 96 Nev. 287, 289-
90, 607 P.2d 1140, 1141 (1980). While this court reviews a district court
decision to grant or deny a writ petition for an abuse of discretion, DR
Partners v. Bd. of Cty. Comm’rs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000),
Supreme Court
OF
Nevaca 4
(O} 174 EB
questions of statutory or constitutional interpretation are reviewed de novo,
Lawrence v, Clark County, 127 Nev. 390, 393, 254 P.3d 606, 608 (2011).
A writ of prohibition is not appropriate to bar the Secretary of State’s
ministerial action
We first resolve the Secretary’s challenge to the writ of
prohibition. The district court issued a writ of prohibition ordering the
Secretary not to place the initiative petitions on the general election ballot.
The Secretary argues that the order fails to identify any judicial or quasi-
judicial functions being carried out and is therefore deficient. We agree and
reverse the portion of the order granting a writ of prohibition.
In addition to barring the extrajurisdictional exercise of judicial
power, a writ of prohibition may be issued to curtail the inappropriate
exercise of quasi-judicial power, Mineral County v. State, Dep't of
Conservation & Nat. Res., 117 Nev. 235, 243-44, 20 P.3d 800, 805-06 (2001),
but the writ does not serve to curtail the exercise of ministerial power,
| Gladys Baker Olsen Family Tr. ex rel. Olsen v. Eighth Judicial Dist. Court,
110 Nev. 548, 552, 874 P.2d 778, 781 (1994). After a ballot measure is
| determined to be procedurally sufficient, the Secretary’s duty to place it on
the ballot is ministerial. Las Vegas Taxpayer Accountability Comm. v. City
Council of Las Vegas, 125 Nev. 165, 172-75, 208 P.3d 429, 434-36 (2009)
(requiring that a procedurally proper ballot measure be placed on the ballot
and rejecting argument that the duty to do so was not ministerial); see also
Caine v. Robbins, 61 Nev. 416, 423, 131 P.2d 516, 519 (1942) (quoting with
} approval authority describing the Secretary of State's publishing proposed
constitutional amendments ag “ministerial, involving the exercise of no
discretion”).
Supreme Gourr
OF
Nevapa
5
(187A EE
The district court erred in concluding that the Secretary of
State was subject to a writ of prohibition in this context.! See State ex rel.
Marshall v. Down, 58 Nev. 54, 57, 68 P.2d 567, 567 (1937) (concluding that
enacting an amendment to a city charter after it had been approved was
ministerial and not judicia! and thus not subject to prohibition).
Accordingly, we reverse the district court order to the extent that it issued
a writ of prohibition.
Mandamus relief was warranted to compel the Secretary of State to take no
action on the withdrawn initiative petitions
The district court also issued a writ of mandamus that directed
the Secretary of State to withdraw the initiative petitions consistent with
NRS 295.026 and her duty to take no further action with respect to the
withdrawn petitions. The Secretary argues that the Nevada Constitution
does not permit withdrawal of an initiative petition after the signatures
have been verified and that she was obligated to place the initiative
‘Decisions of other state courts support this conclusion,
distinguishing the quasi-judicial act of determining whether a measure or
candidate is eligible for placement on the ballot from the ministerial act of
placing that entry on the ballot. For instance, the Ohio Supreme Court has
recognized that prohibition was appropriate when an elections board
exercised a quasi-judicial power in barring a referendum from the ballot
after reviewing the measure in a hearing, State ex rel. McCann v. Delaware
Cty. Bd. of Elections, 118 N.E.3d 224, 228 (Ohio 2018), whereas merely
placing a measure already determined to be sufficient on the ballot is
ministerial and thus not subject to the writ of prohibition, State ex rel, Glass
v. Brown, 368 N.E.2d 837, 837-38 (Ohio 1977). The South Dakota Supreme
Court concluded that prohibition would be suitable where the Secretary of
State had to determine eligibility for office in deciding whether to certify a
candidate. State ex rel. Grigsby v. Ostroot, 64 N.W.2d 62, 65 (S.D. 1954),
The Oklahoma Supreme Court is in accord, distinguishing such a
determination from a ministerial act not subject to the writ. State ex rel.
Heartsill v. Cty. Election Bd. of Carter Cty., 326 P.2d 782, 786 (Okla. 1958).
Supreme Court
oF
Nevaba
{0} 147A OSES
6
0 a
petitions’ questions on the ballot after the Legislature did not act on them.
We disagree and affirm the portion of the district court order granting a
writ of mandamus.
We review a statute’s constitutionality de novo. Nevadans jor
Nev. v. Beers, 122 Nev. 930, 939, 142 P.3d 339, 345 (2006). The challenger
must overcome the presumption that a statute is constitutional with a clear
showing of invalidity. Id. If a statute lends itself to both a constitutional
and an unconstitutional interpretation,. we apply the interpretation that
does not violate the constitution. Sheriff v. Wu, 101 Nev. 687, 689-90, 708
P.2d 305, 306 (1985). And in interpreting a constitutional provision, we look
to the rules of statutory construction and interpret unambiguous
constitutional provisions according to their plain meaning. We the People
Nev. ex rel. Angle v. Miller, 124 Nev. 874, 881, 192 P.3d 1166, 1170 (2008).
Thus, the state constitution is to be read as a whole, and “the interpretation
of a statute or constitutional provision will be harmonized with other
statutes or provisions to avoid unreasonable or absurd results.” Id. at 881,
192 P.3d at 1171.
Article 19, Section 2 of the Nevada Constitution sets forth the
people’s power to propose or amend a statute and to propose a constitutional
amendment. In relevant part. it 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). An initiative petition
must be proposed by a qualifying number of registered voters, as verified by
the Secretary of State after the petition has been filed with the Secretary.
Id, art. 19, §§ 2(2), 3. If the initiative petition “proposes a statute or an
amendment to a statute,” the Secretary must submit the petition to the
Supreme Court
OF
NEVADA
(0) 19874