140 Nev., Advance Opinion cg
IN THE SUPREME COURT OF THE STATE OF NEVADA
NEVADANS FOR REPRODUCTIVE No. 87681
FREEDOM, A POLITICAL ACTION
COMMITTEE,
Appellant,
vs.
DONNA WASHINGTON, AN FILED
INDIVIDUAL; COALITION FOR
PARENTS AND CHILDREN, A
POLITICAL ACTION COMMITTEE;
URT
AND FRANCISCO V. AGUILAR, IN HIS
iEF DEPUTY CLERK
OFFICIAL CAPACITY AS THE
NEVADA SECRETARY OF STATE,
Respondents.
Appeal from a district court order granting injunctive relief
preventing the Secretary of State from placing an initiative petition on the
ballot. First Judicial District Court, Carson City; James Todd Russell,
Judge.
Reversed.
Elias Law Group LLP and David R. Fox, Elisabeth C. Frost, and Daniel J.
Cohen, Washington, D.C.; Bravo Schrager, LLP, and Bradley S. Schrager
and Daniel Bravo, Las Vegas,
for Appellant.
Aaron D. Ford, Attorney General, and Laena St-Jules, Senior Deputy
Attorney General, Carson City,
for Respondent Francisco V. Aguilar, Secretary of State.
Guinasso Law, Ltd., and Jason D. Guinasso, Reno.
for Respondents Donna Washington and Coalition for Parents and
Children.
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Stranch, Jennings, & Garvey, PLLC, and Nathan R. Ring, Las Vegas;
Sandler Reiff Lamb Rosenstein & Birkenstock, P.C., and Joseph Sandler,
Washington, D.C.,
for Amicus Curiae Ballot Initiative Strategy Center Foundation.
BEFORE THE SUPREME COURT, EN BANC.'
OPINION
By the Court, STIGLICH, J.:
Appellant Nevadans for Reproductive Freedom (NRF) intends
to place an initiative petition on the ballot that would establish a
constitutional right to reproductive freedom. The initiative petition would
grant every individual a right to make their own decisions regarding all
matters related to a pregnancy, including prenatal care, childbirth,
postpartum care, birth control, vasectomy, tubal ligation, abortion, abortion
care, management of a miscarriage, and infertility care. Respondents
Donna Washington and Coalition for Parents and Children (collectively
Washington) filed a complaint in district court challenging the petition.
They alleged that the petition failed to meet statutory and constitutional
requirements and sought to enjoin respondent the Secretary of State from
placing the initiative on the ballot. Specifically, Washington asserted that
the initiative petition violated the single-subject requirement because it
considered multiple medical procedures, instead of being limited to only
1The Honorable Patricia Lee, Justice, voluntarily recused herself from
participation in the decision of this matter.
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pregnancy or abortion. The district court granted the injunction, finding
the initiative petition invalid for three reasons: (1) it does not contain a
single subject, (2) its description of effect is misleading, and (3) it requires
an expenditure of money without raising the necessary revenue.
We conclude the district court erred. First, all the medical
procedures considered in the initiative petition concern reproduction. To
assert that they could not all be addressed together because they are
separate procedures is improper. Each medical procedure relates to human
reproduction, and they are germane to each other and the initiative's single
subject of establishing a right to reproductive freedom. We further conclude
that the description of effect was legally sufficient and the initiative petition
does not require an expenditure of funds. Accordingly, we reverse.
FACTS AND PROCEDURAL HISTORY
In September 2023, NRF filed its notice of intent to circulate an
initiative petition that proposes adding a section to Article 1 of the Nevada
Constitution recognizing a person's right to reproductive freedom.
Subsection 1 of the initiative describes the right to reproductive freedom as
follows:
Every individual has a fundamental right to
reproductive freedom, which entails the right to
make and effectuate decisions about all matters
relating to pregnancy, including, without
limitation, prenatal care, childbirth, postpartum
care, birth control, vasectomy, tubal ligation,
abortion, abortion care, management of a
miscarriage and infertility care. The right of an
individual to reproductive freedom shall not be
denied, burdened or infringed upon unless justified
by a compelling State interest that is achieved by
the least restrictive means available.
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Subsection 2 permits the State to regulate abortions after fetal viability but
prohibits such regulation when, in the professional judgment of an
attending provider of health care, an abortion would protect the pregnant
individual. Subsections 3 and 5 prohibit the State from penalizing or
prosecuting a pregnant individual based on the outcome of a pregnancy or
penalizing or prosecuting an individual or entity who assists another person
in exercising their right to reproductive freedom. Subsection 4 provides
similar protections to health care providers:
The State shall not penalize, prosecute or otherwise
take adverse action against a provider of health
care, who is licensed by the State, for acting
consistent with the applicable scope of practice and
standard of care for performing an abortion upon,
providing abortion care to, or providing
reproductive care services to an individual who has
granted their voluntary consent.
Additionally, subsection 6 states that nothing in the initiative "limits the
rights to equality and equal protection."
The initiative includes two definitions. It defines a "compelling
state interest" as "an interest which is limited exclusively to the State's
interest in protecting the health of an individual who is seeking
reproductive health care that is consistent with accepted clinical standards
of practice." It also defines "fetal viability" as the point when, in the
professional judgment of an attending provider of health care, there is a
"significant likelihood" that a fetus could survive outside of the uterus
without extraordinary medical measures.
NRF included the following description of effect on the
signature pages for the petition:
If enacted, this initiative would add a new section
to Article 1 of the Nevada Constitution establishing
a fundamental right to reproductive freedom. This
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initiative enables individuals to make and carry out
decisions about matters relating to their
pregnancies, including prenatal care, childbirth,
postpartum care, birth control, vasectomies and
tubal ligations, abortion and abortion care, and
care for miscarriages and infertility.
If this measure is enacted, the State still may
regulate provision of abortion care after fetal
viability, except where medically indicated to
protect the life or physical or mental health of the
pregnant individual.
Under this measure, the State may not penalize,
prosecute, or take adverse action against any
individual based on the outcome of a pregnancy of
the individual, or against any licensed health care
provider who acts consistent with the applicable
scope and practice of providing reproductive health
care services to an individual who has granted their
voluntary consent. Neither may the State penalize,
prosecute, or take adverse action against any
individual or entity for aiding or assisting another
individual in the exercise of the rights established
by this initiative.
Washington filed the underlying complaint seeking to enjoin
the Secretary of State from placing the initiative on the 2024 election ballot.
Washington challenged the initiative on three grounds: (1) it violates
Nevada's single-subject requirement, (2) the description of effect is
misleading and fails to provide essential information, and (3) the initiative
requires the expenditure of money but does not provide the necessary
funding.2
2The Secretary of State was listed as a defendant but did not file an
answer and took no position on the matter at the hearing. Likewise, the
Secretary has filed an answering brief on appeal that takes no position.
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After a hearing, the district court granted Washington's request
for declaratory and injunctive relief, barring the Secretary of State from
placing the initiative on the ballot. The court concluded that the initiative
embraces a multitude of subjects that are covered under various chapters
of the Nevada Revised Statutes. The court also concluded that the
description of effect was misleading and omitted important effects of the
initiative petition. Lastly, the court concluded that the initiative requires
the State to create a board to determine whether a provider of health care
acted within the standard of care in providing reproductive care, that
creating such a board would require the expenditure of money, and that the
initiative does not provide a revenue source for that expenditure. This
appeal followed.
DISCUS SION
The Nevada Constitution gives the people the authority to place
an initiative on the ballot to make law directly by proposing legislation and
constitutional amendments. That power is broad but subject to some
limitations. In particular, an initiative petition must be limited to a single
subject, include a legally sufficient description of effect, and provide a
revenue source for any required expenditure of funds. When considering
whether an initiative petition complies with those requirements, a
reviewing court must ensure the people's right to the initiative process is
not quelled. See Educ. Initiative PAC v. Comm. to Protect Nev. Jobs, 129
Nev. 35, 37-38, 293 P.3d 874, 876 (2013) (explaining that a court must
construe an initiative petition's compliance with the description of effect
requirement in such a way that does not "obstruct, rather than facilitate,
the people's right to the initiative process"). Thus, the party challenging an
initiative petition bears the burden of demonstrating the initiative is clearly
invalid or does not comply with these requirements. See Las Vegas
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Taxpayer Accountability Comm. v. City Council of Las Vegas (LVTAC), 125
Nev, 165, 176, 208 P.3d 429, 436 (2009) (holding that the party challenging
ballot measures "beads] the burden of demonstrating that the measures are
clearly invalid"). Our review is de novo given that the district court resolved
the challenge to the underlying initiative petition without any factual
disputes. Helton v. Nev. Voters First PAC, 138 Nev., Adv. Op. 45, 512 P.3d
309, 313 (2022).
The initiative petition complies with the single-subject requirement
NRF asserts that because the initiative contains a single
subject, "creating and defining a fundamental right to reproductive
freedom," the district court erred when it concluded that the initiative
petition violated Nevada's single-subject requirement. We agree.
Under Nevada law, "[e]ach petition for initiative or referendum
must ... [e]mbrace but one subject and matters necessarily connected
therewith and pertaining thereto." NRS 295.009(1). A petition meets this
single-subject requirement if its provisions "are functionally related and
germane to each other in a way that provides sufficient notice of the general
subject of, and of the interests likely to be affected by, the proposed
initiative." NRS 295.009(2).
Applying these provisions, we have stated that the "preliminary
inquiry. .. is whether the initiative's parts are 'functionally related' and
'germane' to each other." Nevadans for the Prot. of Prop. Rights, Inc. v.
Heller (NPPRI), 122 Nev. 894, 907, 141 P.3d 1235, 1243 (2006). To answer
that question, the court must first determine the initiative's overarching
purpose or subject and then determine if each provision is functionally
related and germane to that purpose or subject. See id. at 907-09, 141 P.3d
at 1244-45; LVTAC, 125 Nev. at 180, 208 P.3d at 439. In determining an
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initiative's purpose or subject, we look to the initiative's textual language
and the proponents' arguments. LVTAC, 125 Nev. at 180, 208 P.3d at 439.
We recently applied this analysis in Helton. 138 Nev., Adv. Op.
45, 512 P.3d 309. That case concerned an initiative petition seeking to
implement open primary elections and ranked-choice general elections for
specified officeholders. Id. at 312-13. We first identified that the initiative's
purpose was "the framework by which specified officeholders are presented
to voters and elected."3 Id. at 314 (emphasis omitted). We then analyzed
the changes proposed—an open primary and ranked-choice general
election—and concluded that even though the two changes concerned
different steps in the election process, they were functionally related and
germane to each other and the initiative's purpose. Id. at 314-15. Thus, we
concluded the initiative complied with the single-subject requirement. Id.
at 315.
The initiative petition here has the single subject of
establishing a fundamental right to reproductive freedom. All the
initiative's provisions functionally relate and are germane to that subject
arid each other. Subsection 1 establishes and describes the right to
reproductive freedom. Subsections 2 through 5 ensure that the right
established in subsection 1 cannot be violated by the State. Subsection 6
clarifies that the initiative does not narrow or limit equal protection rights.
Lastly, subsection 7 defines terms used within the initiative. Thus,
3To the extent Washington argues that Helton created a new single-
subject compliance criteria by requiring an initiative to include a framework
concerning the subject, instead of addressing the mechanics of a subject, we
reject this contention. Our discussion of those terms in Helton was to help
explain why the initiative there did not violate the single-subject
requirement.
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subsections 2 through 7 all functionally relate to subsection 1 and the
creation of a right to reproductive freedom.
The inclusion of enforcement provisions that ensure the State
does not violate the newly established reproductive freedom right does not
violate the single-subject requirement. We acknowledge that some of the
proposed prohibitions against penalties and regulatory allowances
contained in subsections 2 through 5 could have been proposed in separate
initiative petitions. Nevertheless, that possibility does not preclude a single
initiative that presents them together when they are all germane to the
creation of a right to reproductive freedom. In Helton, we recognized that
an initiative petition can propose more than one change and still comply
with the single-subject requirement as long as the changes are functionally
related and germane to each other and the overall subject of the initiative.
512 P.3d at 315. This is true here, as all the initiative's sections relate to
reproduction. Further, even though the medical treatments or conditions
discussed in the initiative may be addressed by various NRS chapters, they
each concern the subject of reproduction and can be addressed together in a
petition addressing that subject.
Washington takes issue with this view of the petition's subject,
arguing that characterizing the broad idea of "reproductive freedom" as the
petition's single subject results in "logrolling." The term "logrolling" was
used by the concurring and dissenting justices in NPPRI to describe what
the single-subject requirement is intended to prevent. 122 Nev. at 918, 141
P.3d at 1251 (Maupin, J., concurring and dissenting); id. at 922, 141 P.3d
at 1254 (Hardesty, J., concurring and dissenting). As Justice Hardesty
explained, "logrolling" occurs "when two or more completely separate
provisions are combined in a petition, one or both of which would not obtain
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enough votes to pass without the other." Id. at 922, 141 P.3d at 1254
(Hardesty, J., concurring and dissenting). In that scenario, an unpopular
provision typically is buried in the text of an initiative addressing a more
popular provision that the proponent expects will easily be approved by the
voters. Id. The single-subject requirement thus aims to prevent logrolling
by ensuring that the voters' attention is focused on the one subject being
advanced, "without creating confusion over what that subject is, and
without making them choose between competing policy goals." Id. at 923,
141 P.3d at 1254. This court expanded upon that discussion of logrolling in
LVTAC, stating that logrolling may also occur when an unpopular provision
is concealed in a lengthy, complex initiative. 125 Nev. at 176-77, 208 P.3d
at 436-37.
We are not convinced this initiative petition involves logrolling.
The petition itself is rather short and limited to protecting reproductive
rights. Additionally, the initiative petition does not tie a highly attractive
proposal to one that may struggle to get votes. Notably, Washington does
not identify a popular provision that NRF is using to hide a less popular
provision. In fact, the most contentious provision in the petition, abortion,
is prominent and clearly identified both in the petition and in the
description of effect. We cannot say that NRF is hiding an unpopular
provision in a lengthy, complex petition or attaching an unpopular provision
to a popular one. Thus, logrolling has not occurred here.
This initiative petition's single subject is the creation of a
fundamental right to reproductive freedom. All the petition's provisions are
fundamentally related or germane to that single subject. There is no
logrolling. We therefore conclude that the district court erred by
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•
determining that the initiative petition did not comply with the single-
subject requirement.
The description of effect is legally sufficient
Next, NRF challenges the district court's conclusion that the
initiative petition's description of effect is defective. NRF asserts that the
description of effect is a straightforward, succinct, and nonargumentative
summary of the initiative's effect. Thus, NRF argues the description of
effect complies with NRS 295.009(1)(b).
NRS 295.009(1)(b) requires each initiative petition to Is]et
forth, in not more than 200 words, a description of the effect of the
initiative . . . if the initiative . . . is approved by the voters." Because the
description of effect is statutorily required to be no more than 200 words, it
41cannot constitutionally be required to delineate every effect that an
initiative will have; to conclude otherwise could obstruct, rather than
facilitate, the people's right to the initiative process." Educ. Initiative, 129
Nev. at 38, 293 P.3d at 876. In sum, the description of effect "must be a
straightforward, succinct, and nonargumentative summary of what the
initiative is designed to achieve and how it intends to reach those goals."
Helton, 138 Nev., Adv. Op. 45, 512 P.3d at 316 (quoting Educ. Initiative, 129
Nev. at 37, 293 P.3d at 876).
The district court concluded that the description of effect is
legally insufficient. In doing so, the court concluded that the description of
effect is "misleading because it fails to mention that the law will bar the
State from prosecuting, fining, or regulating any rniscarriage or stillbirth";
fails to clarify what provider of health care would make a decision that an
abortion is necessary; and does not define the term "medically indicated,"
which "misleads voters into believing that there is a specific set of criteria
to determine when the mother's physical or mental health requires an
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abortion." The district court was also concerned that the description of
effect does not address the equal protection section.
We disagree with the district court. The description of effect
addresses the initiative's goals: to recognize and protect a fundamental
right to reproductive freedom. The description of effect also addresses how
the initiative intends to reach those goals: by defining what is included in
the right to reproductive freedom and limiting the State's regulation and
prosecution of reproductive decisions. Although Washington and the
district court express concern with the failure to address specific effects of
the petition, we reiterate that a description of effect cannot be required to
address all possible ramifications of an initiative in the limited 200-word
summary. See Helton, 138 Nev., Adv. Op. 45, 512 P.3d at 317 ("With so few
words in which to explain the effect of an initiative petition, a challenger
will always be able to find some ramification of or provision in an initiative
petition that the challenger feels is not adequately addressed in the
description of effect."). Most of the omitted effects identified by Washington
and the district court do not concern the initiative's primary goal. Instead,
the identified omissions involve how the initiative may apply in a variety of
hypothetical situations, such as whether a prosecution may be permitted
after a miscarriage or stillbirth. The court cannot, after the fact, conclude
that the description of effect must discuss certain potential issues when the
proponents do not allege that the primary goal of the initiative petition was
to address those potential issues. See id. at 317 (explaining that the
sufficiency of the description of effect does not depend "on whether someone
else could have written it better"). Because the description of effect for this
initiative petition is "a straightforward, succinct, and nonargumentative
summary of what the initiative is designed to achieve and how it intends to
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reach those goals," we conclude the description of effect is legally sufficient.
Id. at 317-18 (internal quotation marks omitted).
The initiative petition does not require an expenditure of money
Lastly, NRF argues that the district court erred when it
concluded that the initiative violates the Nevada Constitution because it
requires an expenditure of money but does not provide a source of revenue.
We agree that the initiative does not require an expenditure of money.
Article 19, Section 2 of the Nevada Constitution generally
guarantees the people the power to legislate and to amend the Nevada
Constitution by initiative petition. That power is limited by Article 19,
Section 6, which precludes "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." See also Nev.
Const. art. 19, § 2(1) (stating that the people's power to legislate by initiative
petition is "subject to the limitations of Section 6 of this Article"); Educ.
Freedorn PAC v. Reid, 138 Nev., Adv. Op. 47, 512 P.3d 296, 302-03 (2022)
(holding that Article 19, Section 6's limitation on the initiative power
applies to petitions that propose constitutional changes). Thus, "an
initiative that makes an appropriation or requires an expenditure of money
is void if it does not also provide for the necessary revenue." Educ. Freedom,
138 Nev., Adv. Op. 47, 512 P.3d at 303 (internal quotation marks omitted).
The district court concluded that the initiative requires an
expenditure of money to create a board to determine if abortions are
performed within the standard of care. In particular, the district court
focused on subsection 4 of the initiative, which provides the State cannot
:`penalize, prosecute or otherwise take adverse action against a provider of
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health care, who is licensed by the State, for acting consistent with the
applicable scope of practice and standard of care for performing an abortion
upon, providing abortion care to, or providing reproductive care services to
an individual." The district court reasoned that only a provider of health
care can testify as to the standard of care and thus a panel or board would
need to be created to evaluate whether an abortion had been provided
within the standard of care.
The district court reads too much into subsection 4. The
provision limits the State's ability to prosecute a health care provider for
providing abortion services or reproductive care that a party has consented
to receive. It does not require that such providers be prosecuted if their care
falls below the standard of care. Nor does the provision clearly contemplate
a new State entity to determine the standard of care or to evaluate whether
a provider performed within the standard of care. As the district court's
order seemingly recognizes, if a health care provider were prosecuted or
sued for substandard care, appropriate expert testimony could be presented
to address the applicable standard of care. If a provider's care fell below the
standard of care, current laws and procedures for penalizing or prosecuting
a health care provider could address such a situation. See, e.g., NRS
Chapter 41A (permitting an action for professional negligence when a
health care provider's treatment falls below the standard of care, causing
damages); NRS Chapter 630 (governing licenses of health care providers
and providing procedures for discipline). Further, to the extent the district
court construed the initiative as requiring a standard of care to be set as a
matter of law, the state government already includes entities that the
Legislature could task with adopting such regulations. See, e.g., NRS
442.007(1) (providing that "Mlle State Board of Health shall adopt
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regulations establishing standards for perinatal care provided by any
provider of health care"); NRS 442.260(1) (providing that the Division of
Public and Behavioral Health "shall adopt and enforce regulations
governing the conditions under and the methods by which abortions may be
performed"). Accordingly, it is not a foregone conclusion that the initiative
requires an expenditure of money to create a board to make those
determinations. The idea that the initiative requires such an expenditure
is speculative, at best.
Washington failed to meet her burden of demonstrating that
the initiative petition includes an appropriation or requires the expenditure
of money. Washington provided no relevant evidence below, and the fiscal
report did not indicate that the initiative petition would require an
expenditure of funds. Even at oral argument before this court, Washington
acknowledged that any appropriation or expenditure of funds would be
merely speculative at this point. Accordingly, we conclude the initiative
petition does not violate Article 19, Section 6 of the Nevada Constitution.
CONCLUSION
The district court erred when it credited Washington's
challenge to the initiative petition and enjoined the Secretary of State from
placing the measure on the ballot. The initiative petition has a single
subject: the establishment of a fundamental right to reproductive freedom.
All the provisions of the initiative petition are germane or functionally
related to that subject. Additionally, the description of effect is legally
sufficient, as it is a straightforward, succinct, and nonargurnentative
summary of the initiative's goals and how it intends to achieve those goals.
Lastly, Washington did not meet her burden of demonstrating that the
initiative petition requires an expenditure of money. Accordingly, we
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reverse the district court's order enjoining the Secretary of State from
placing the initiative petition on the 2024 ballot.
Al;„%y,*"..P J.
Stiglich
We concur:
, C.J.
Cadish
Pickering Herndon
Parraguirre
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