UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Transcription

1 1 1 1 LAW OFFICES OF KERMITT L. WATERS Kermitt L. Waters, Esq. Nevada Bar No. 1 0 South Ninth Street Las Vegas, Nevada 1 Telephone: (0) - Facsimile: (0) 1- Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ) PEST COMMITTEE, a Nevada Ballot Advocacy ) No. Group; TONY BADILLO, an individual; JACK ) LIPSMAN, an individual; AL MAURICE, an ) COMPLAINT FOR DECLARATORY individual, ) JUDGMENT AND INJUNCTIVE ) RELIEF Plaintiffs, ) vs. ) ) ROSS MILLER, in his official capacity ) as Secretary of State for the State of Nevada. ) ) Defendant. ) ) INTRODUCTION 1. In the 0 election cycle in the State of Nevada, twelve different initiative petitions were filed by citizens groups attempting to amend the Nevada Constitution or the Nevada Statutes. All twelve were challenged by political opponents claiming that the Secretary of State should not certify any of the proposed initiatives, and not one is currently left standing. All twelve were challenged as violating the provisions of Nevada Revised Statutes (hereinafter NRS).00. NRS.00 requires that a proposed initiative petition not be more than one subject, and that it must include a description of effect that is not more than 0 words. Because there are no Page 1

2 1 1 1 standards as to what constitutes a single subject, and because citizens groups fear fighting court battles against powerful special interest groups who can afford to wage a perpetual expensive legal fight, and then they request attorney s fees and costs against the citizen groups, plaintiffs bring this action under the First and Fourteenth Amendments to the United States Constitution.. Plaintiffs claim that NRS.00 s continued enforcement by the Secretary of State violates the Free Speech Clause of the First Amendment, the right to Freedom of Association, the right to Petition the Government for a redress of grievances. Plaintiffs also claim that NRS.00 s definition of a single subject is overbroad, vague and ambiguous, and that it s continued enforcement constitutes a Prior Restraint against free speech. Because of the legal harassment, costs, and uncertainty of whether they can survive a legal challenge, many citizen groups, such as the Plaintiffs, forego from fear their right to file and circulate an initiative petition, rather than exercise their Free Speech rights to do so. The continued enforcement by the Nevada Courts and the Secretary of State of the NRS.00 and NRS.01 severely chills free speech, because Plaintiffs and citizen groups have learned by experience that they are almost certain to be challenged in state court and lose claiming that their initiative petition covers more than one subject, no matter how it is worded. Ironically, under the Nevada single subject statute, the First Amendment to the United States Constitution would violate the single subject standard of Nevada, since it contains five different clauses; freedom of religion, freedom of speech, freedom of the press, freedom of association and the right to petition the government for a redress of grievances.. Plaintiffs PEST Committee had previously filed an initiative petition known as Prevent Employers from Seizing Tips (PEST I) and were challenged in state court by Wynn Resorts LLC, the Nevada Restaurant Association, the Nevada Manufacturer s Association and a host of other Page

3 1 1 1 business groups. On March, 0, Plaintiffs attempted to remove their case to federal court. Four months later, on July, 0, the federal court remanded the case back to state court. Wynn Resorts LLC and the other business groups filed a motion requesting attorney s fees for being the prevailing party in federal court. They demanded that the initiative petition be dropped. (See Exhibit 1, Motion for Attorney s Fees by Nevada Restaurant Association, Wynn Resorts LLC, et al v. PEST Committee, et al. filed on July, 0.) They were willing to drop their Motion for Attorney s Fees, if the PEST Committee was willing to withdraw the initiative with the Secretary of State. JURISDICTION AND VENUE. The Plaintiffs bring this action for Declaratory and Injunctive relief pursuant to USC 01 and USC and USC requesting this Honorable Court to declare Nevada Revised Statutes (NRS).00 and.01 in violation of the First and Fourteenth Amendments to the United States Constitution. The plaintiffs also ask this Court enjoin the statute s enforcement by the Secretary of State and the state courts of Nevada.. Because this cause of action is based upon a federal constitutional claim, this Court has jurisdiction pursuant to USC, 1(a)() and (a)().. If this Court does not accept jurisdiction, Plaintiffs right to exercise their First Amendment rights in the form of filing an initiative petition will prejudiced, because the state courts of Nevada have already determined that that NRS.00 is constitutional and does not infringe on Plaintiffs First Amendment rights under the United States Constitution. The deadline to submit those signatures for verification is November, 0, that is, one week after the general election.. Venue is proper in the District of Nevada pursuant to USC.. Because this cause of action involves no claim for damages, but only a request for declaratory and prospective injunctive relief, the Eleventh Amendment does not bar this civil action. See, Culinary Workers Union v. Del Papa, 0 F. rd 1, (th Cir. ). Page

4 These statutes have already harmed protected speech and continue to affect the political speech of these parties, therefore, a case and controversy exists for which the PEST Committee has standing to bring this civil action. See SOC v. County of Clark, F. rd, (th Cir. ) amended 0 F. rd 1 (th Cir. ). THE PARTIES. The PEST COMMITTEE is a ballot advocacy group organized for proposing a ballot initiative for the 0 general election. The committee members filed the proper paperwork with the Secretary of State on January, 0. The PEST Committee filed their first proposed initiative, Prevent Employers from Seizing Tips on January, 0. As mentioned above, they withdrew their initiative petition, made changes to it, and then re-filed it on September, 0.. Tony Badillo is the Chairman of the ballot advocacy group. Tony Badillo is the head of the International Union of Gaming Employees and is a retired casino dealer. 1. Al Maurice is also one of the organizers of the PEST Ballot Advocacy Group. Al Maurice currently works as a dealer at the Mirage Hotel and Casino. 1. Jack Lipsman is the last organizer of the PEST COMMITTEE. He too is a retired casino dealer, since all the dealers currently working at Wynn Resorts LLC are afraid they will lose their jobs, if they exercise their Free Speech rights to engage in the initiative process attempting to change the law regarding their tips that are being taken. 1. Ross Miller, hereinafter, the Defendant, is the Secretary of State for the State of Nevada. He is sued in his official capacity as the Secretary of State. STATEMENT OF FACTS. On January, 0, the PEST Committee filed a proposed initiative entitled; Prevent Employers from Seizing Tips (PEST) with the Secretary of State of Nevada, Ross Miller. (See Page

5 1 1 1 Exhibit, Pest Initiative I). Within business days of filing their petition and using the unique standing given to them by NRS.01, the PEST Committee was sued in state court by Wynn Resorts, the Nevada Restaurant Association and other powerful business groups to prevent the PEST Initiative from being placed on the ballot. Wynn Resorts LLC is the only casino in Nevada that currently takes tips that are given directly to its employees.. NRS.01 allowed these business parties the authority to act under color of state law. Wynn Resorts and their business allies alleged that the proposed initiative petition was in violation of NRS.00. These groups claimed that the proposed initiative contained more than one subject, which it did not. They also claimed that the description of effect on the proposed initiative was misleading, which it was not. The state court plaintiffs further claimed that the initiative somehow called for an increase in government spending without including a necessary tax provision as required by Nevada Constitution Article, section, which it did not.. Lastly, the state court plaintiffs alleged that the proposed initiative was unconstitutional on its face, and violated the Equal Protection Clause of the 1 th Amendment of the U.S. Constitution, which it did not. They claimed, that if enacted, the proposed initiative would create two classes of employers: employers who would be eligible to receive tips, and those who would not be eligible to receive tips. Without the provisions of NRS.01, groups opposing an initiative petition prior to an election would have no standing to make a pre-election challenge.. As already mentioned above, based upon this allegation of a Federal Question in the Wynn Resort s group state court complaint, the PEST Committee filed a Notice of Removal to Federal Court on March, 0. The Secretary of State and the state court plaintiffs opposed removal to federal court and filed a Motion to Remand the case back to state court. Twice, the Federal Judge in Reno had the issue of removal jurisdiction briefed, and specifically asked Page

6 1 1 1 questions about the equal protection federal claims that had been raised by the state plaintiffs. On July, 0, the Federal District Judge granted the Motion to Remand the case back to state court.. The remand order reasoned that courts, both state and federal, were reluctant to accept preelection challenges to initiative petitions, since they wanted to avoid the practice of issuing advisory opinions on initiatives that might not ever be approved by the voters. In none of the cases cited by the Federal Judge was there a procedure like NRS.01 giving an automatic right to file a pre-election challenge. Since the federal removal jurisdiction was contingent on the state court complaint by Wynn Resorts LLC and the other business parties, the Federal Judge stated that their federal pre-election challenge was without merit, and remanded the case to state court. The Court also ruled that in a minority of jurisdictions, courts would accept a pre-election challenge if a proposed initiative was unconstitutional on its face. The Wynn Plaintiffs had alleged in the federal count, that the PEST initiative was unconstitutional on its face.. As previously stated above, on July, 0, the Wynn Resorts plaintiffs filed a Motion in federal court for Attorney s Fees, based upon the attempt by the PEST Committee to remove the case to Federal Court. The Motion for Removal was based upon the federal claim that the state court plaintiffs had asserted. On August, 0, the PEST Committee agreed to withdraw their initiative petition in order to have the Motion for Attorney s Fees withdrawn. (See attached Exhibit, Withdrawal of Initiative Petition). Because the PEST Committee members have limited financial resources, they feared a large judgment against them for attorney s fees and costs, and therefore they agreed to drop their initiative petition. On August 1, 0 the Motion for Attorney s fees was withdrawn, and the Federal Judge signed the order dismissing the request for Attorney s fees. Page

7 In order to remove one of the colorable objections by one of the state court plaintiffs, the PEST Committee amended their original initiative petition and re-filed it on September, 0. ( See Exhibit, Prevent Employers from Seizing Tips II). The new initiative petition is similar to the petition they filed on January, 0. Plaintiff PEST Committee expects with 0% certainty, that they will be immediately sued in state court by the same parties who will again complain they are violating the Single Subject Rule or that the 0 word Description of Effect is somehow misleading no matter how simple or clearly that it is worded.. This complaint is an action seeking declaratory and injunctive relief and challenges the sweeping and irrational restrictions on the ability of private citizens to file initiative petitions in the State of Nevada to exercise their political speech. This is an overbreadth and vagueness challenge to NRS.00 and NRS.01. This is also a facial constitutional challenge under the Free Speech clause of the First and Fourteenth Amendment to the United States Constitution alleging that the initiative and referendum process has been stifled by the above cited statutes. The Single Subject Rule has caused a chilling effect among plaintiffs and other citizens wishing to propose content based changes to Nevada Law. These particular Nevada statutes fail to provide proper notice of what is permitted or what is prohibited, leaving persons of common intelligence to guess as to the meaning and application of those standards. This chilling effect creates an impermissible risk of suppression of speech by delegating overly broad discretion to state officers. For example, the various decisions in state court interpreting NRS.00 are so irrational as to defy the normal understanding of the English language. These decisions give no guidelines to any citizen wishing to exercise political speech through the political process.. The application of these statutes under color of state law also constitute a prior restraint on core political speech for PEST and other citizen groups who wish to file and circulate Page

8 1 1 1 initiative petitions to make changes in Nevada Law. These statutes also infringe the Free Speech rights of citizens wishing to receive the arguments about initiative, to exercise their rights by signing the initiative petition, and then to vote on the initiative at the subsequent election.. Plaintiffs allege violations of plaintiff s rights of freedom of association as guaranteed by the First Amendment, and they allege also violations of their Due Process Rights under the Fourteenth Amendment to the United States Constitution.. Since the passage of NRS.00 and NRS.01 in June 0, almost every initiative proposed by private citizens, has been challenged and removed in total or in part under a theory, that the subject matter or content of the proposed initiative, involved more than a single subject. NRS.01 gives unique standing and authority to any person opposed to the proposed initiative the right to challenge that initiative from appearing on the ballot by suing in the First Judicial District Court based in Carson City, Nevada. Defending a lawsuit in Carson City is a very inconvenient forum and very expensive for most of the residents of this state. This right to challenge takes place before the signatures are submitted to the Secretary of State for verification and prior to the election.. Citizen groups like PEST fear that if the District Judge, or thereafter, the State Supreme Court, changes one word in the initiative petition, then all the signatures gathered so far would have been gathered in vain, and they will have to start the signature gathering process all over again. Plaintiffs groups like PEST are still subject to further legal challenges from their opponents, such as a challenge to the new language, or after the signatures are submitted, a challenge to the legal sufficiency of the signatures. The threat of a legal challenge is always looming over their head. Page

9 For the appellate record, the First Judicial District is the district where the state capital is located. It is the district where the Secretary of State has his principal business location. The First Judicial District only has two district court judges. These two judges have no special training in election law, and have no additional expertise over any other state court judge, which they readily admit in their own decisions.. There are no clear and definite standards and guidelines under NRS.00 to help determine whether the political speech in an initiative involves more than a single subject under NRS.00. If the state District Court Judge concludes without any guidelines or standards that the proposed initiative involves more than one subject, then the initiative is ordered removed. The same process takes place at the Nevada Supreme Court. This lack of guidance or standards creates an impermissible risk of suppression of ideas. A. History of the Single Subject Rule (NRS.00). Nevada Revised Statutes.00 and.01 states as follows: NRS.00 Requirements for petition: Must embrace one subject; must include description. 1. Each petition for initiative or referendum must: (a) Embrace but one subject and matters necessarily connected therewith and pertaining thereto; and (b) Set forth, in not more than 0 words, a description of the effect of the initiative or referendum if the initiative or referendum is approved by the voters. The description must appear on each signature page of the petition.. For the purposes of paragraph (a) of subsection 1, a petition for initiative or referendum embraces but one subject and matters necessarily connected therewith and pertaining thereto, if the parts of the proposed initiative or referendum 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 or referendum. (emphasis added). (Added to NRS by 0, ) NRS.01 Challenge to description of petition; challenge to legal sufficiency of petition. 1. Except as otherwise provided in subsection, whether an initiative or referendum embraces but one subject and matters necessarily connected therewith and pertaining thereto, and the description of the effect of an initiative or referendum required pursuant to NRS.00, may be challenged by filing a complaint in the First Judicial District Court Page

10 1 1 1 not later than days, Saturdays, Sundays and holidays excluded, after a copy of the petition is placed on file with the Secretary of State pursuant to NRS.0. All affidavits and documents in support of the challenge must be filed with the complaint. The court shall set the matter for hearing not later than days after the complaint is filed and shall give priority to such a complaint over all criminal proceedings.. The legal sufficiency of a petition for initiative or referendum may be challenged by filing a complaint in district court not later than days, Saturdays, Sundays and holidays excluded, after the petition is certified as sufficient by the Secretary of State. All affidavits and documents in support of the challenge must be filed with the complaint. The court shall set the matter for hearing not later than days after the complaint is filed and shall give priority to such a complaint over all other matters pending with the court, except for criminal proceedings.. If a description of the effect of an initiative or referendum required pursuant to NRS.00 is challenged successfully pursuant to subsection 1 and such description is amended in compliance with the order of the court, the amended description may not be challenged. (Added to NRS by, 0; A 0, ; 0,, ) 0. The original Constitution of the State of Nevada was approved by the residents of Nevada in. As part of the original constitution, Section to the Nevada Constitution provided for procedures to amend the Constitution, but in the original Nevada Constitution, the only avenue to amend the Constitution was through the state legislature. Article, Section 1 provided that any amendments to the Nevada Constitution would originate in the Senate or Assembly, and if approved by a majority of each house, would then be sent to the residents of the state for approval by the voters at the next statewide general election. Constitutional amendments beginning in the state legislature are required to be approved by two successive legislative sessions, and require approval by the voters just once. 1. In 1, in response to the political abuses by the railroad companies in the United States, and in particular, California and Nevada; Article, sections and, were added to the Nevada Constitution. These sections provided for the citizens of Nevada to propose their own amendments to the state constitution, and not have to wait for their elected legislators to act on amending the constitution. Historically, the railroad companies were known as the Robber Page

11 1 1 1 Barons, controlled the politicians, and made sure that the politicians did not pass laws that directly affected their business interests. The Casino control over the politicians today seems no different. Constitutional amendments initiated by citizens groups are required to be approved by the voters at two succeeding general elections. Nevada is the only state in the union requiring that constitutional amendments must be approved by the voters twice.. A few years earlier, in 0, Article, section 1 had been approved by the citizens of Nevada. Article, section 1, provided for a referendum for approval or disapproval of a statute enacted by the legislature. This referendum power gave the citizens a veto power over a statute or bill of which they did not approve.. For almost a century, the process to qualify initiative petitions in Nevada remain unchanged until 0, when the Americans Civil Liberties Union challenged the requirement to obtain signatures in 1 of the counties. In 0, the Ninth Circuit affirmed this Court s decision striking down Nevada s Thirteen Counties rule. See ACLU of Nevada v. Lomax, 1 F. rd ( th Cir. 0). In total disregard of the Federal Court s decision at both the trial and appellate levels, the legislature passed NRS.01 requiring that signatures would have to be gathered in all counties. Rather than respecting the one-man, one-vote principle, the Legislature chose to make it more difficult to qualify initiative petitions to satisfy the concerns of the mining and casino industries. Legislative responses like the County Rule or the Single Subject Rule show that the Legislature has no concern for respecting the constitutional rights of the citizens of Nevada to genuinely engage in the initiative process. The Legislative response also shows that they have an ongoing agenda to block the efforts of citizens to be able to make amendments to Nevada statutes or the Nevada Constitution.. In 0, two ballot initiatives were on the ballot involving drastic changes to medical Page

12 1 1 1 malpractice lawsuits limiting pain and suffering damages. One petition was sponsored by a group of trial lawyers. Another initiative was sponsored by doctors and insurance companies. Both initiatives were long and confusing, but at the statewide general election in 0, the voters read through all the confusing language and political attacks, and voted down both measures. Using the confusion of these two ballot initiatives as a pretext to reform the initiative process, the Nevada Legislature passed Senate Bill. When signed by Governor Kenny Guinn, SB became NRS.00 and.01 requiring that initiatives proposed by the citizens pursuant to Article, sections and, would be required to embrace one subject, and also that a description of effect would be required.. Although the provisions of Article of the Nevada Constitution contained many detailed provisions, no where in the Nevada Constitution was there a restriction that when citizens are attempting to propose an amendment to the constitution or the Nevada Statutes, that it would be limited to one subject. With the passage of SB, the Nevada Legislature attempted to amend the Nevada Constitution by statute, circumventing the amendment process that required that any amendments to the Nevada Constitution had to be approved by a vote of the people.. The Nevada Legislature is required by the Nevada Constitution, Article, section, that each law enacted by the Legislature shall embrace but one subject, and matter, properly connected therewith In practice, the laws passed by the legislature are defined by the Nevada Courts by their subjects in a very broad sense, whereas laws proposed by citizens are defined by the Nevada Courts in an irrationally narrow or specific sense. The restrictions on the Legislature to amend the Constitution or statutes are imposed on them by the Nevada Constitution. The Page 1

13 1 1 1 restrictions on the citizens to amend the Constitution or the state statutes are imposed by SB, a statute passed in 0.. SB, authored by Senator Randolph Townsend and Assemblywoman Heidi Gansert, when finally passed embraced three subjects. According to the legislative history and specifically the Legislative Counsel s Digest, SB was an act relating to elections. The Townsend/Gansert bill amended NRS A to require a nonprofit corporation to file a list of its officers with their names and addresses with the Secretary of State, before they would be allowed to solicit or receive campaign contributions to affect the outcome of any election. Although the stated subject was elections, in a narrower sense, this section of SB could be categorized as dealing with the subject of campaign finance.. Secondly, SB added a new section, NRS.00 so that each proposed initiative must embrace but one subject, and matters necessarily connected therewith. In its broadest sense, this section dealt with elections, but analyzed less abstractly, the addition of NRS.00 could be classified under the subject of the language of initiative petitions.. Thirdly, SB, also required that each petition for an initiative or referendum must include on each page of the petition, a 0 word summary or description of effect. Lastly, this bill made technical changes to the requirements of political action committees by requiring them to provide their telephone numbers as well as their addresses before they could engage in any action in the State of Nevada. 0. During the legislative debates, in a twist of irony, Senator Bob Beers noted that the Legislature had just passed a bill that itself seemed a violation of the Legislature s own single subject rule; and secondly, he noted that it would be difficult to determine whether a proposed initiative involved more than one subject. Also, during those debates, the Legislative Counsel, Page 1

14 1 1 1 Ms. Brenda Erdoes justified the seeming violation of SB saying that proposed legislation is to be read broadly, and that all of the subjects in SB could come under the category of Elections or at its very narrowest, Election Procedures. B. The Legal Challenges to Initiatives Using the Single Subject Rule 1. Two years ago, the sponsors of the People s Initiative to Stop the Taking of Our Land (PISTOL) after spending over $00,000 dollars in the signature gathering process and after gathering 1,000 signatures, submitted their signatures to be certified by the Secretary of State. The Secretary of State certified the legal sufficiency of the signatures presented by the PISTOL group and was prepared to put the initiative on the ballot as Question.. As soon as PISTOL qualified for the ballot, it was challenged by a group of citizens calling themselves, Nevadans for the Protection of Property Rights. Ironically, according to the campaign and expense reports filed by this group which raised over $0,000 in contributions in a single month came mostly from casinos and developers. PISTOL was challenged in state court under a claim that the initiative violated the Single Subject rule. Ironically, PISTOL had been written and approved by the Legislative Counsel Bureau after Assemblywoman Sharron Angle had requested that a Property Owner s Bill of Rights be drafted in response to the Kelo eminent domain decision at the United States Supreme Court in June 0. In 0, the provisions of NRS.01 allowed the challenge after the certification of the signatures, but the 0 Legislature changed that. In 0, the challenges under.00 had to be made within days of the initial filing of the initiative petition with the Secretary of State s office.. In defending the state action, a constitutional challenge was raised at the Nevada Supreme Court alleging that NRS.00 violated the Nevada Constitution, since the Legislature had no right to create restrictions by passing a statute that in essence amended the provisions of the Page 1

15 1 1 1 Nevada Constitution. The Nevada Supreme Court held that PISTOL violated the single subject rule, and removed what they believed to be provisions unrelated to the subject of eminent domain. It also held that the legislature had the right to pass legislation that enhanced the ability of citizens to circulate initiative petitions. Although.00 clearly restricts the constitutional right of citizens to amend their constitution, the Nevada Supreme Court clearly held that the Legislature, by statute, could take away the power of citizens guaranteed to them by their state constitution. (See Heller v. Nevadans for the Protection of Property Rights, 1 Nev. 1, 0). For the 0 election cycle, as of the filing of this complaint, seven different groups filed proposed initiative petitions with the Secretary of State.. On September, 0, former Assemblywoman Sharron Angle through her group, We the People, filed an initiative entitled: Nevada Property Tax Restraint Initiative (aka Nevada s Proposition 1). This initiative was challenged in state district court in Carson City by the AFL- CIO claiming that it violated the 0 Word Description of Effect Rule of NRS.00. On October, 0, We the People withdrew their initiative to have it re-written to prevent the legal challenge and costs associated with defending the challenge. On February, 0, We the People file a modified version of their previous initiative, naming this one; Property Tax Reform Initiative for Nevada. Nearly six months passed from the time that We the People started the process of trying to qualify a constitutional amendment for the 0 ballot. We the People had less than three months to gather the necessary signatures. They missed the May, 0 deadline, but were able to convince the Nevada Supreme Court that the May th deadline was unconstitutional.. After submitting the required number of signatures, they were challenged on a new ground by the Nevada State Educators Association. This new ground claims that the signatures submitted Page

16 1 1 1 did not meet the legal sufficiency standard, and therefore the Secretary of State should not certify the initiative for the November 0 election. As of this writing, just last week, a retired District Court Judge ruled that the signatures gathered in Clark County would not be counted, primarily because they were bound incorrectly, and for other hyper technical reasons. Since the ballots are being printed in mid-september, the Nevada Supreme Court will not have time to qualify the initiative for the ballot.. The Nevada State Educators Association filed an initiative known as Save our Schools with Additional Funding on November, 0. On the fifteenth day, which was the last day to file a challenge, the Nevada Resort Association challenged the content of the language in the initiative as violating NRS.00 in that it constituted more than one subject. The two alleged subjects were first: raising the gaming tax on the casinos, and secondly, designating that the money would be spent on education.. After briefs and arguments and a hearing on the matter, Justice Miriam Shearing, a retired Supreme Court Justice sitting by special appointment as a District Judge in the 1 st Judicial District of Nevada, found that the NSEA initiative violated the Single Subject rule in that the NSEA could not earmark where the tax revenue would be allocated, otherwise, it would be two subjects.. After making the changes in the language of the initiative, the NSEA re-filed their initiative petition, and once again, the Nevada Resort Association sued to remove the Save Our Schools initiative off the ballot. The NSEA brokered a deal with Wynn Resorts and several other casinos, and agreed not to submit the signatures that they gathered to the Secretary of State. 0. The Ballot Advocacy Group named the People s Amendments to Restore, Integrity, Openness and Trust (PATRIOT) on December 1, 0 filed two companion initiatives to increase the tax on casinos. One initiative was entitled: It s Time for Gaming s Fair Share, and Page

17 1 1 1 the other was named, It s Time for Gaming s Fair Share and Eliminate Property Taxes. On January, 0, the fifteenth and final day to mount a legal challenge, the Nevada Resort Association sued to remove the PATRIOT Initiatives from the ballot on three grounds: (1) that the proposed initiatives constituted a revision to the entire constitution as an unconstitutional delegation of legislative power arguing that only the Nevada Legislature had the power to raise taxes, () that the tax and spend provisions violated the Single Subject Rule, () that the Description of Effect was materially false and misleading. 1. After a hearing on February, 0, the Honorable William Maddox ruled that the PATRIOT Initiatives were an unconstitutional delegation of legislative power, but more importantly, the Court held that since the PATRIOT Initiatives attempted to direct how the money would be spent, by attempting to earmark the spending of the money, PATRIOT had violated the Single Subject Rule of NRS.00. The Court made this order, despite the fact that Article, section of the Nevada Constitution provides that any citizen sponsored initiative that proposes to spend money, must also, include a necessary tax. If Article, section of the Constitution requires that all spending measures, must include a second clause that also includes the necessary tax increase, then the statutory provisions of NRS.00 preventing two subjects in one initiative creates an irrational, statutory Catch. The Honorable William Maddox did not get to the question of whether the Descriptions of Effect were misleading. The judge also denied PATRIOT s request to have a jury trial on the factual issue in dispute.. The PEST initiative, submitted by the PEST Committee was filed on January, 0. It too was challenged in state court claiming that it violated the single subject rule, that the description of effect is false and misleading, that it violated Article, section of the Nevada Constitution, and lastly, and that it violated the Fourteenth Amendment to the U.S. Constitution. Page

18 1 1 1 As stated above, the PEST Committee removed the state court complaint to federal court, where the state plaintiffs challenged the right of the federal courts to determine the legal validity of the Fourteenth Amendment Equal Protection Claim they had raised. The federal judge declined to hear the case, citing cases that questioned the wisdom of state and federal courts to intervene in pre-election challenges for initiative petitions.. Two other groups have also filed initiative petitions since the commencement of this lawsuit. The Clean and Open Government Amendment and the Tax Backed Lobbying Ban were both filed on February, 0 by Christopher Hansen of the American Independent Political Party of Nevada. On February, 0, the Education Enhancement Act and the Funding Nevada s Priorities Act were filed by former State Treasurer Bob Seale, and the Nevada Taxpayer s Protection Act was filed by former State Controller Steve Martin on March, 0. According to recent press reports, the last three initiatives are being financed by the Venetian Hotel and Casino and their owner, Sheldon Adelson. These initiative petitions were also challenged, and the state court judge ruled that they did not violate the single subject rule. On appeal, the Nevada Supreme Court avoided the issue of the Single Subject Challenge, and instead, ruled that the Adelson signatures had been collected on the 0 affidavit form, which was the wrong form and ordered that the Adelson petitions not be certified. The 0 affidavit form had been incorrectly provided in the 0 Secretary of State s handbook. The proper 0 affidavit form also was included in the Secretary of State s handbook, but the Supreme Court ruled that using the form provided by the Secretary of State was not substantial compliance with the requirements of the signature gathering requirements.. The pattern of lawsuits prematurely to remove ballot questions before a single signature is gathered became the norm in the 0 election cycle. Page

19 An integral part of citizen participation in democracy is the ability to be able to file an initiative petition when all attempts to change the law through the legislative process or the courts has failed. Proponents, such as Plaintiffs, or the other groups that are attempting to get initiatives on this year s ballot have a long history of trying to appeal to the legislative process to seek the change in the law that they feel is necessary. With respect to PEST, they on behalf of their members have even been trying to fight Wynn Resorts with the current version of NRS 0.0, which clearly indicates that no one, including an employer can take an employee s tips. The Plaintiffs on behalf of various dealers who have tried to legally challenge the practice, have been unable to make any headway before the Administrative Law Judges and the state court judges in Clark County.. Because of frustration with the legislative and judicial roadblocks that they encountered, the PEST Committee has filed this initiative petition and this lawsuit to ask that the citizens of Nevada be allowed to vote on whether their proposed changes to the law should be enacted. C. The Constitutional Deficiencies of NRS.00 and NRS.01. The requirements of NRS.00 requiring that proposed initiatives be limited to a single-subject and must include a 0 word description of effect are a prior restraint on free speech, since it requires a permit-like restriction on content from the state court judges in Carson City before allowing a citizen s group to begin the signature gathering process.. Permit requirements and permit-like restrictions on content like NRS.00 that is political speech are a burden on free expression in a public forum and a prior restraint.. Content-based permit requirements of NRS.00 on core political speech for free expression are presumptively unconstitutional, subject to strict scrutiny and may only be justified if narrowly tailored to a compelling government interest. Content-neutral time, place and manner Page

20 1 1 1 regulations are subject to intermediate scrutiny and must leave open ample avenues of communication, be supported by a substantial government interest, and not restrict substantially more speech than is necessitated by that interest. 0. The Single Subject Rule of NRS.00 is content-based. Specifically, it restricts proposed initiative petitions, which can only be classified as core political speech, to one subject and matters necessarily connected therewith if the parts of the proposed initiative or referendum 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 The stated justification of NRS.00 is to regulate the content of that political speech out of an alleged concern for its effect upon the reader and or the listener. 1. The State of Nevada does not have a substantial or compelling government interest in applying the permit-like restriction of.00 to initiative proponents, nor is there a clear and present danger for its vague and overbroad restrictions, which are not narrowly tailored to its asserted interests to remove PEST or any other citizen sponsored initiative from the ballot.. The State of Nevada has established vague and overbroad standards (e.g. matters necessarily connected therewith functionally related and germane to each other ) that abuses and gives rise to strategically filed lawsuits by powerful business interests, i.e. the quasi-state actors who are taking advantage of the vague and overbroad standards that delegate overly broad discretion to the decision maker, such that each and every lawsuit challenging an initiative petition creates an impermissible risk of content-based suppression of ideas.. The State of Nevada through NRS.00 and NRS.01 has allowed the Secretary of State and the state court judges to remove initiatives without a compelling state interest at the request of powerful political opponents. Page

21 As allowed by NRS.01, within fifteen () days of filing an initiative petition, sponsors of a content based initiative petition like Plaintiffs and other citizen groups are subject to a lawsuit in the First Judicial District Court of the State of Nevada based in Carson City by special interests opposed to the changes in the law proposed by the initiative petition. The pretext for the lawsuits as explained above always is that the proposed language violates the Single Subject Rule, or that the Description of Effect is false and misleading.. In combination, NRS.00 and NRS.01 creates special standing for any private individual to stand in the shoes of a quasi-attorney general and challenge any proposed initiative. Both these statutes allow unbridled discretion in the state court judges and the political opponents of these initiatives to abuse these statutes and to chill the core political speech of citizens initiatives that run counter to their own interests. These statutes permit them to target the content of the speech and to defeat initiatives they disagree with for political reasons.. NRS.00 and NRS.01 places unbridled discretion in the state court judge to whom the case is assigned. The decision to grant or deny permission to allow the proposed initiative to go forward to the signature gathering process for a chance to be placed on the general election ballot turns on the loosely defined terms of but, one subject.. and matters necessarily connected therewith.. (and) functionally related and germane to each other... The standards for denial for permission to gather signatures and have a content-based initiative petition on the ballot places unconstitutional burdens on free speech in a public forum. This lack of standards has had a chilling effect on Plaintiffs and on those citizen groups who are uncertain whether they will be sued by opponents of their content based initiative. Plaintiffs and citizens groups are chilled because they are uncertain how broadly or narrowly a judge will interpret the standard of a single subject. Page

22 The standards for denial for permission for Plaintiffs to gather signatures and have a content-based initiative petition on the ballot are a prior restraint in a public forum.. The standards for denial for permission for Plaintiffs to gather signatures are not supported by a substantial or compelling governmental interest and are not sufficiently narrowly tailored to any such interest. FIRST CLAIM FOR RELIEF U.S.C /First and Fourteenth Amendments NRS.00 and NRS The allegations set forth in all the foregoing paragraphs are incorporated herein by reference. 1. Plaintiffs enjoy the First and Fourteenth Amendment rights to assemble and engage in free speech by proposing initiatives for which quasi-permit type restrictions are required under the two Nevada statutes regarding the Single Subject Rule and the Description of Effect.. The acts and practices of the Defendant and his agents, were performed under color of state law, and, therefore constitute actions of the State within the meaning of the Fourteenth Amendment to the United States Constitution and USC.. NRS.00 and.01 provide that any person opposed to a proposed ballot initiative may sue to remove it under a colorable theory that it encompasses more than one subject. These statutes provide no guidelines or standards to assist the state court judges or even Defendant Miller whether a proposed ballot question constitutes more than one subject. Thus, these two statutes are used by the State of Nevada to delegate authority to private citizens who are adverse political groups to arbitrarily violate the Plaintiffs First Amendment s guarantee of freedom of speech and of the right to petition the government. Page

23 NRS.00 and.01 contains vague and overbroad prohibitions which, because precision is lacking, subject Plaintiffs and other sponsors of an initiative to enforcement abuse.. Although these statutes purport to balance the rights of the public with those of persons who desire to enjoy First Amendment freedoms in terms of their right to vote, they are in fact a political mode of regulating, preventing, controlling speech, of being abused and suppressing First Amendment rights. They lack any administrative guidelines or procedure, or any real guidance for the state judges by which proposed initiatives can be reviewed to determine their validity. These statutes are unconstitutional on their face and/or as applied to the Plaintiffs in this case.. Content-based permit requirements imposed on Plaintiffs for free expression are presumptively unconstitutional, subject to strict scrutiny and may only be justified if narrowly tailored to a compelling government interest.. Content-neutral time, place and manner regulations imposed on Plaintiffs are subject to intermediate scrutiny and must leave open ample alternative avenues of communication, be supported by a substantial governmental interest, and not restrict substantially more speech than is necessitated by that interest.. NRS.00 and.01 as imposed on Plaintiffs are not supported by compelling or substantial government interests.. NRS.00 and.01 as imposed on Plaintiffs arbitrarily restrict certain expressive political activities without a rational basis for doing so. 0. NRS.00 and.01 as imposed on Plaintiffs are not narrowly tailored to their asserted interests. 1. NRS.00 and.01 as imposed on Plaintiffs are vague and overbroad. Page

24 NRS.00 and.01 as imposed on Plaintiffs give unbridled discretion to the state court judges to approve or reject initiatives based upon the content of the language in the initiative.. NRS.00 and.01 as imposed on Plaintiffs are not valid time, place and manner regulations.. On their face and/or as applied, these two statutes are unconstitutional as to Plaintiffs under the First and Fourteenth Amendments of the United States Constitution.. There is an actual controversy between the parties as herein set forth. The Plaintiffs are suffering irreparable injury and are threatened with irreparable harm in the immediate future by reason of the acts herein complained. A substantial loss or impairment of freedom of expression has already occurred and will continue to occur so long as Defendant s enforcement and NRS.00 and NRS.01 continue.. Plaintiffs will suffer irreparable harm and injury and have no plain, adequate or speedy remedy at law to address the wrongs herein complained of other than this action. Any other remedy to which Plaintiffs might receive would be attended by such uncertainties and delays as to deny substantial relief, involve a multiplicity of suits, and cause further irreparable injury, damage, and inconvenience to the Plaintiffs and to those similarly situated. The award of damages is not adequate to protect them from the continuing abuse of the state judicial process and the chilling effect it has upon the exercise of Plaintiffs constitutional rights. PRAYER FOR RELIEF. WHEREFORE, Plaintiffs respectfully pray that this Court: a. Assume jurisdiction over this action. Page

25 1 1 1 b. Declare that the NRS.00 and NRS.01 is unconstitutional on its face and/or as applied by the District Court Judges and that State Supreme Court of Nevada. c. Enter a preliminary and permanent injunction against Defendant Ross Miller, their successors and assigns, and all persons acting in concert therewith and all persons subject to Federal Rule of Civil Procedure s scope from enforcing the above statutes or from removing the proposed initiative on the basis of NRS.00 and NRS.01. d. Grant leave to amend the pleadings to add additional parties if this Court later deems are necessary for complete relief. e. Award plaintiffs attorney s fees, costs, and such other and further relief as may be just and equitable. f. That this Court maintain jurisdiction over the Secretary of State and all persons or agencies of the State of Nevada acting in concert to deny the First Amendment rights to Plaintiffs and other citizen groups in the State of Nevada wishing to exercise their right to file an initiative petition. g. Order such additional relief as the Court may deem just and proper. DATED: September th, 0 By: LAW OFFICES OF KERMITT L. WATERS Kermitt L. Waters, Esq. Page

26 1 1 1 EXHIBIT 1 Motion for Attorney s Fees by Nevada Restaurant Association, Wynn Resorts LLC, et al v. PEST Committee, et al dated July, 0 Page

27 1 1 1 EXHIBIT PEST Initiative I filed January, 0 Page

28 1 1 1 EXHIBIT Withdrawal of PEST Initiative I filed with Secretary of State on August, 0 Page

29 1 1 1 EXHIBIT PEST Initiative II filed September, 0 Page