Regular readers may have caught my Friday column in the Review-Journal about a truly bizarre Nevada Supreme Court ruling in the case of the Caesars Entertainment arena proposal planned for the Strip. A committee affiliated with Caesars commissioned an initiative petition that would create a special taxing district on the Strip to fund the project, and got the required signatures last year.
But the project is being fought vociferously by another committee affiliated with rival MGM Resorts International and Boyd Gaming, which oppose a Casears arena in part because it would be built with tourist tax dollars wrung from the special taxing district. Plus, the opponents argued, the way the initiative is written, it would allow only the Caesars project, and not other potential arenas proposed for downtown, UNLV, and Henderson, near the M Resort.
The Supreme Court agreed with that argument, and ruled last week that the legally required description of effect that appeared on every page of the petition was “deceptive and materially misleading” because it failed to mention the exclusivity of the Casesars site. The ruling remanded the case to the 1st Judicial District Court in Carson City, with orders to re-write the description of effect, but it also specifically denied a motion by opponents that the measure be tossed off the November ballot, where voters are slated to decide its fate.
That created a good deal of confusion at the tail end of last week. Supporters said the court intended simply for the description to be re-written so when it’s published in state-issued voter guides, the voters will have the correct information. But opponents argued that the high court had delivered a death blow to the initiative, since under state law, if the description of effect is re-written in any way — even a change of a single word — then the signatures collected thereunder are invalid and the process must begin anew. That would force Casears back into the field to collect signatures, with a tight November deadline. The measure couldn’t appear before voters until November 2014 at the earliest.
(You can read the Supreme Court’s order for yourself here: Taxpayers-v-Committee-ORDER.)
Sure enough, on Friday, arena opponents filed a motion in the First District, asking District Court Judge James Todd Russell to explicitly do what they claim the Supreme Court implicitly ordered: Toss out the signatures and begin anew, with the re-written description of effect.
(You can read that motion for yourself here: Taxpayers-V-Committee-MO-SIGNATURES.)
“How can one saythat signatures collected with a ‘deceptive and materially misleading’ description of effect are valid, when the very purpose of the description of effect is to accurately inform registered voters about the initiative as they ‘decide the threshold issue of whether they event want the initiative placed on the ballot,’” the motion reads. “Such a conclusion would be absurd and NRS 295.015(2) makes it clear that the Legislature did not intend such an absurd result.”
“By instructing this [District] court to modify the description of effect, the Nevada Supreme Court is presumed to have known that NRS 295.015 requires invalidation of the signatures previously collected,” the motion adds.
So, why didn’t the Supreme Court explicitly say the previously collected signatures were invalid as a result of the deceptive and materially misleading description of effect, strike the measure from the ballot and be done with it? The motion suggests that justices implied that in their order.
“While the [pro-arena] Committee will certainly urge an expansive reading of footnote 4 in thie order of remand [which denied a motion to remove the initiative from the November ballot] this court should apply it based solely on its plain language — the Nevada Supreme Court declined to remove the initiative from the ballot,” the motion reads. “Instead, the Supreme Court remanded the case to this [District] court for ‘proceedings consistent with this order.’
“As a result of those proceedings, the description of effect must be modified. Once the description has been modified, this court will have no choice other than to invalidate all of the signatures that were collected prior to the amendment of the description of effect.”
The arguments over what the Supreme Court meant in its order will clearly continue, with one possible explanation that justices preferred not to strike the arena initiative from the ballot to avoid irritating Caesars, which has spent considerable time and money on the initiative. If Russell invalidates the signatures, he’ll bear the wrath of the company instead. Then again, if he doesn’t knock it off the ballot, he’ll irk MGM Resorts International, which doesn’t want to see the measure go before voters, requiring an expensive and hard-fought campaign leading up to November.
But the post-order arguing is unique in another aspect, too: It’s hardly common for this much ambiguity to exist after a ruling is made, much less on such a fundamental point. Justices without wasting too much paper could have easily settled this in their order, with just a line or two. The fact that they did not is noteworthy in and of itself.
UPDATE: Who’s to do the dirty work? It looks like the Supreme Court will! In response to a motion for rehearing/clarification, the court today (Tuesday, June 26) unanimously signed an order that sets a schedule for briefs specifically addressed to the issue of NRS 295.015, and what effect it might have on allowing the initiative to go forward to the November ballot. In other words, “whoops — my bad!”