The Nevada Supreme Court has ruled that Boulder City wrongly sued six residents who circulated ballot initiative petitions in 2010 and ordered the case be dismissed.
The Jan. 24 Supreme Court ruling overturned previous District Court rulings in favor of the city and ordered it to pay the defendants’ attorneys’ fees and costs.
The city sued Daniel Jensen, Walt Rapp, Frank Fisher, Cynthia Harris, Nancy Nolette and James Douglass after they drafted, circulated and submitted initiative petitions to place questions on the November 2010 ballot.
The residents were exercising their First Amendment rights and never should have been sued, said attorney and former Boulder City Councilwoman Linda Strickland, who, along with her husband, Tracy, represented the group.
“Even though this is a victory … it really is a hollow victory in the sense that these people just got what they were entitled to all along by the (U.S.) Constitution, the Nevada Constitution and the Boulder City Charter,” Linda Strickland said.
The city sued to challenge the legality of three initiatives, which limited city debt, established term limits for volunteer committees and prevented the city from owning more than one golf course. City staff believed the initiatives overstepped the city’s administrative authority and that naming the petitioners in a lawsuit was the only way to have the initiatives examined by a court.
“We thought we had to name somebody, and they were the real parties of interest, so to speak,” City Attorney Dave Olsen said. “We were not going after them claiming they had any financial liability or any liability whatsoever in this … in our minds we were not suing them.”
The petitioners, however, argued in District Court that the city’s suits were strategic lawsuits against public participation, filed in an effort to silence them.
The city, represented by law firm Lionel Sawyer &Collins, successfully argued at the District Court level in Clark County that it had the right to sue the petitioners to challenge the initiatives.
The Supreme Court overturned the rulings of three District Court judges, ruling that the city’s suits were SLAPPs and the city could have challenged the initiatives by naming the secretary of state or another government entity as a defendant.
The defendants’ case was aided by the state Legislature amending Nevada’s anti-SLAPP statute in 2013, providing clarity about defendants’ immunity from civil actions.
“The changes to the anti-SLAPP statutes and the legislative history show that the Legislature intended for the anti-SLAPP statutes to cover all speech directly connected to the matters of public concern, and thus, the District Court’s holding that the petition at issue in the appeal was not a protected communication was in error,” the Supreme Court wrote.
Despite the Supreme Court ruling, Jensen said the lawsuit was damaging.
“We may have won technically, but I think we lost. It took so long and it so discouraged everybody,” he said. “You don’t see too many citizen directive initiatives now, do you?”
Linda Strickland, however, feels the petitioners did affect change.
“I just don’t know if the people of Boulder City will really appreciate the fact that these six people who were involved in these lawsuits stuck their necks out so the people of Boulder City can freely and without fear participate in the political process,” she said. “They went through a lot and I hope the people of Boulder City recognize them for what they are, and that’s heroes.”
Two of the initiatives, a requirement that voters approve new city debt in excess of $1 million and a requirement that volunteer committees and commissions have 12-year term limits, made it onto the November 2010 ballot and were approved by voters.
Initiatives requiring the city to own only one golf course and changing the city attorney’s position from appointed to elected were not approved.
The city did not challenge the petition regarding the city attorney.
The “sad thing” about the case, Olsen said, is that the issue of the initiatives’ legality was never reviewed by a court.
“The underlying issue that our lawsuit was all about never got addressed,” Olsen said. “We never got to that point.”
Linda Strickland said the defendants incurred attorneys fees and costs of more than $100,000, which the city will be required to pay.
Olsen said he did not know how much money the case cost the city, but he said “it wasn’t cheap.” In April 2011, Olsen estimated the cost was at $180,000.
The defendants also are able to sue the city for punitive damages, according to Nevada’s anti-SLAPP legislation.
Stephen Stubbs, a local attorney familiar with Nevada’s anti-SLAPP statutes, said the Supreme Court’s ruling is “a lottery ticket” for the petitioners.