By Barbara Ellestad/MLN
After an hour-long hearing on Tuesday, June 26, Clark County District Judge William Kephart granted a restraining order and preliminary injunction against a ballot initiative petition that would outlaw smoking in casinos, private apartments and townhomes, and other outdoor areas in Mesquite.
A lawsuit was initially filed on June 12 alleging the initiative petition was legally invalid because the 200-word Description of Effect was defective, incomplete and misleading. The request for the restraining order and injunction filed June 18 asked for a hearing prior to the June 29 deadline for submitting the petition signatures to the Mesquite City Clerk for verification.
“What the preliminary injunction essentially did was invalidate all the signatures that had been collected up to this point,” Mesquite City Attorney Bob Sweetin told the city council at its Tuesday night meeting. “His reasoning for doing so was that the description of effect of the petition was not reasonably understandable to the general members of the public signing it. As we stand today, the petition is not moving forward.”
Sweetin said the petition group, known as Mesquite Citizens’ Initiative for Clean Indoor Air political action committee, could rewrite the petition’s description to comply with Nevada law and then re-gather the required 1,210 signatures by the June 29 deadline in order to have it on the November general election ballot. An alternative would be for the PAC to file an appeal of the Judge’s decision to the Nevada Supreme Court on an expedited basis.
Sweetin advised the council that the city clerk will keep the petition that the PAC turned in on June 21 containing more than 2,200 signatures. “We will wait for the appeal deadline to run,” he said.
The original complaint was filed by Mesquite Gaming LLC, Rancho Mesquite Casino Inc., and six individuals, all of whom list Mesquite as their home. The defendants include the Mesquite Citizens’ Initiative for Clean Indoor Air, Mesquite City Council and City Clerk, and the Clark County Registrar of Voters.
The PAC attorneys filed a response to the request for injunction on Monday saying, “the proposed description [of the petition] is succinct, direct, and-most importantly-truthful and neutrally non-argumentative.”
The defendant’s response also cited the late filing of the plaintiff’s original complaint in the initiative timeline. “Had Plaintiffs brought their claims earlier, in the event that this suit is successful, Defendant might have had time to amend or re-write the measure and still gather signatures sufficient to move forward with the process.”
The PAC’s response also said that “there is no three-year moratorium on amendment or repeal of a successful measure” at the local municipal level like there is with voter-approved amendments to the Nevada Constitution or statewide initiatives.
The court document said, “the City Council of Mesquite can amend, annul, set aside, or repeal the Petition the moment it takes effect, if successful at the ballot box and if the Council is willing to do so. It [council] can alter the ordinance to suit its preferences-immediately. The Council can add to or subtract from the newly-enacted ordinance, at its leisure and without delay.”
However, the Nevada Supreme Court ruled in 2016 that local governments, like the State Legislature, are prohibited from amending initiatives that are passed in an election for a period of three years.
The PAC’s response also said, “As to the alleged prohibition on smoking in multi-dwelling residences, it is actually not clear from the text of the measure that this is an effect of the measure. Such places are not included in the definition of ‘public place,’ and are not included in Section 5’s [of the petition] list of locations where smoking is disallowed.”
The proposed law says on page 6 under Section 3, Definitions, “dwelling unit means physical portion of a multi-unit housing facility designated for separate residential ownership or occupancy and includes any accessory spaces and areas, such as garage space, storage space, balcony, porch, deck, terrace or patio. Dwelling unit includes, without limitation, an apartment, condominium, townhouse, or duplex.”
The same section also defines “multi-unit housing facilities to include but not limited to apartments, condominiums, townhomes,” among others.
Section 5, Prohibition of Smoking in Public Places, says “A private residence is not a public place unless it is used as a child care, adult day care or health care facility, provided such private residence is not a unit located in a multi-unit housing facility.” Only single-family detached houses would not be covered under the proposed ordinance.