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The People's Legislature v. Cegavske

United States District Court, D. Nevada

May 25, 2017

THE PEOPLE'S LEGISLATURE, a Nevada political action committee; and CITIZEN OUTREACH, INC., a Virginia non-profit corporation, Plaintiffs,
v.
BARBARA CEGAVSKE, in her official capacity as Secretary of State of Nevada; and THE NEVADA LEGISLATURE, Defendants.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This case concerns whether Nevada's ballot initiative is constitutional under the First and Fourteenth Amendments of the United States Constitution. Before the Court is Plaintiffs' Belated Motion for Leave to Add Bob Beers and Charles Muth as Plaintiffs Pursuant to Rule 20 (“Plaintiffs' Motion”). (ECF No. 75.) Defendants filed a response and motion to dismiss for lack of standing and a motion to stay the dispositive motion deadline (“Defendants' Motion”).[1] (ECF No. 76.) Plaintiffs filed a response to Defendants' Motion (ECF No. 82) and a reply in support of their Motion (ECF No. 83). Defendants then filed a reply in support of their Motion. (ECF No. 84.)

         For the reasons discussed below, the Court denies Plaintiffs' Motion and grants Defendants' Motion. Defendants' Motion to Stay is denied as moot.

         II. BACKGROUND

         A. Procedural History

         The original complaint in this case was filed on January 18, 2012, in the Eighth Judicial District Court in Clark County, Nevada. (ECF No. 1-1.) Ross Miller, then the Secretary of State of Nevada, removed this action on February 21, 2012. (ECF No. 1.) The Nevada Legislature became an intervenor-defendant[2] in this case upon the Court's order of August 15, 2012. (ECF No. 53.) This case was stayed by stipulation on October 18, 2012. (ECF No. 56.) The stay was not lifted until three years later, on November 12, 2015, at which point the Court directed the parties to file a proposed amended joint discovery plan and scheduling order. (ECF No. 67.) The discovery deadline was then set for September 15, 2016, and the dispositive motions deadline was set for October 14, 2016. (ECF No. 72.) On September 26, 2016, Defendant Barbara Cegavske, the current Secretary of State of Nevada, filed a motion to extend the dispositive motions deadline. (ECF No. 73.) The Court granted this motion on October 5, 2016, and set the new deadline for filing dispositive motions for November 16, 2016. (ECF No. 74.)

         B. Underlying Allegations

         In their Second Amended Complaint (“SAC”), Plaintiffs The People's Legislature (“People”) and Citizen Outreach (“Citizen”) challenge the process by which citizens draft, file, and circulate ballot initiative petitions under Nevada law. (ECF No. 41 at 1.) More specifically, Plaintiffs challenge the single-subject restriction and 200-word description-of-effect requirement established at NRS § 295.009, as well as the unlimited private Attorney General enforcement provision and the mandatory venue for litigation set forth in NRS § 295.061.[3] (Id.) Plaintiffs also challenge NRS § 295.015, which they contend “provides that if the Court changes one word [in the description-of-effect] all signatures previously gathered are void.” (Id. at 1-2.)

         The SAC asserts one claim for relief pursuant to 42 U.S.C. § 1983, contending that NRS §§ 295.009, 295.115, and 295.061 are unconstitutional, both facially and as applied, under the First and Fourteenth Amendments of the United States Constitution.[4](Id. at 20-22.) They ask this Court to: (1) declare that these three statutory provisions are unconstitutional as applied and used together or, in the alternative, (2) strike one or more of the statutory provisions as an unreasonable burden on free speech; and (3) enter a preliminary and permanent injunction against Defendant Ross Miller, his successors and assigns, and all persons acting in concert with Defendant from enforcing these three statutory provisions or from removing any future proposed initiative on the basis of NRS §§ 295.009 and 295.061. (Id. at 23.)

         C. Relevant Precedent

         In Pest Committee v. Miller, the Ninth Circuit Court of Appeals found NRS §§ 295.009 and 295.061 to be facially constitutional under the First Amendment. See Pest Comm. v. Miller, 626 F.3d 1097, 1103 (9th Cir. 2010). More specifically, the court affirmed the district court's holding that, “Nevada's statutory single-subject, description-of-effect, and pre-election challenge provisions do not impose a severe burden on First Amendment rights, are permissible regulations of the state's electoral process, and are not unconstitutionally vague.” Id. at 1099. The court also found that the two statutory provisions were not overly broad, finding that the “single-subject or description-of-effect provisions [do] not establish that individuals or courts are unable to discern what is required or that the provisions are so standardless that [they] authorize[ ] or encourage[ ] seriously discriminatory enforcement, ” id. at 1111 (internal quotation marks and citation omitted), nor “do [they] have the effect of thwarting all attempts to place initiatives and referenda before the voters, ” id. at 1113. In other words, the court found that the two statutory provisions did not have a chilling effect, as the plaintiffs in the case had claimed. See id. at 1102, 1112-13.

         III. DEFENDANTS' MOTION

         Because Defendants' Motion raises the threshold issue of standing, the Court will address ...


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