Justice Mark Gibbons on Elections Law
From Judgepedia
Before the Court En Banc, a Per Curiam opinion ruled that a pre-election challenge, seeking declaratory and injunctive relief to remove the Nevada Clean Indoor Air Act initiative from the general election ballot, which would restrict or prohibit smoking in Plaintiffs’ business establishments, should remain on the ballot. The court held, among other things, that (1) the alleged unconstitutionality of a voter initiative measure, if approved, is not appropriate for pre-election judicial review (2) procedural defects or constitutional or statutory limits on the initiative power are usually appropriate for pre-election judicial review (3) the proponents of the initiative did not mislead voters on the term “stand along bar” (4) the district court lacked authority to interpret the initiative’s proposal to include hotel and motel rooms.
In contrast, Justice Rose dissented in part because he believed the initiative’s description of a “stand-alone bar,” was “anything but straight forward and accurate,” and therefore the initiative’s sponsors failed in their responsibility to make the language of the initiative straightforward and accurate.
- ON THE REASONING FOR NOT ALLOWING SUBSTATIVE CONSTITUTIONAL CHALLENGES TO PRE-ELECTION INITIATIVES: “if substantive constitutional challenges were allowed in the guise of procedural or subject matter challenges, it would open the floodgates to almost any kind of pre-election challenge: “Not only would this infringe upon the constitutional rights of the people, but it would needlessly inject our courts into a political dispute that is time sensitive.... We do not substantively review the legislature's bills before enactment, and will not do so with the people's right of direct legislation.”
- ON WHY PRE-ELECTION CHALLEGNES TO AN INITATIVE’S SUBSTATNIVE CONSTITUTIONALITY ARE NOT RIPE: “Pre-election challenges to an initiative's substantive constitutionality 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.”
- ON WHY THE INIATIVE USE OF “STAND ALONE BAR” DID NOT MISLEAD VOTERS: If a signer questioned the phrase's meaning, he or she had only to read the one-and-a-half page initiative itself to find the definition, which was set forth in the text. Also, the imprecision in Stumpf concerned the fundamental matter of whether a statute or a constitutional amendment was proposed; here, the initiative's primary purpose of enacting a statute to prohibit smoking in most public places is clear. In this regard, the Colorado Supreme Court has opined that a ballot measure's summary and title “need not be the best possible statement of a proposed measure's intent” or “address every aspect of a proposal.” Rather, the purpose is to “ ‘present straightforward, succinct, and non-argumentative titles and summaries.’
- ON WHY THE DISTRICT COURT LACKED AUTHORITY TO INTERPRET The INITATIVE’S PROPOSAL TO INCLUDE HOTEL AND MOTEL ROOMS: “We need not consider amici curiae's hotel/motel room argument, however, because the district court lacked authority at the preelection stage to interpret the proposal to include hotel and motel rooms. Just as substantive constitutional arguments, which generally must be evaluated in the context of a concrete factual situation, are improperly considered before an initiative becomes law, so did the district court improperly attempt to apply the measure to a hypothetical set of facts. Essentially, the district court's determination was an improper advisory opinion. Thus, it is void. If the measure passes, then it may be applied and interpreted according to well-settled rules of statutory construction.”
- ON THE DISSENTS REASONING: The breadth of the smoking ban is an essential part of the proposition, and I am sure many signatures were obtained because the signer believed that casinos and “stand-alone bars” would not be included in the prohibition, whether they served food or not-the initiative provided as much in sections 1 and 2(3)(b), and in the title itself. While the majority points out that a signer could read through the entire initiative to find the very limiting definition of “stand-alone bars,” it is primarily the initiative's sponsors' responsibility to make the language throughout the initiative straightforward and accurate.
