Hearing set for smoking ban lawsuit

Clark County District Judge William Kephart set a hearing date of June 26 for a temporary restraining order and preliminary injunction against defendants in a lawsuit filed June 12 over a ballot initiative petition that would outlaw smoking in casinos, private apartments and townhomes, and other outdoor areas in Mesquite.

Judge Kephart also gave the defendants, primarily the Political Action Committee sponsoring the Mesquite Citizens’ Initiative for Clean Indoor Air, until June 22 to file and serve their opposition to Plaintiffs’ motion for the injunction.

Documents filed with the court requesting an expedited hearing regarding the temporary restraining order point out “that the PAC is already seeking signatures in support of the Petition and the City is already being forced to expend tax dollars in reviewing the financial effect of this patently unlawful Petition, which will only increase as the initiative process continues.”

The plaintiffs in the original complaint filed June 12 include 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.

A second document “Plaintiffs’ Memorandum (Memo) of Points and Authorities in Support of Complaint for Declaratory and Injunctive Relief” was also filed in the same court on June 12 that further spells out the deficiencies in the Initiative for Clean Indoor Air petition.

The complaint “challenges the initiative petition identified by the title Mesquite Citizens’ Clean Indoor Air Initiative or Mesquite Clean Indoor Air Ordinance petition. The Petition is legally invalid because its mandatory Description of Effect is defective as it is incomplete and misleading. Plaintiffs respectfully request that this Court grant declaratory relief and rule that the Petition is invalid.”

“The Petition presents a surreptitious attempt to lure Mesquite’s voting public into passing an initiative that is both constitutionally and statutorily invalid,” according to the Memo. It also says that “Pre-circulation challenges to initiatives are warranted under circumstances in which the initiative’s description of effect fails to fully and accurately disclose the initiative’s nature, effect, purpose and consequences.”

According to the memo, “This basic and fundamental requirement – that a petition truthfully and fully inform voters of the nature and effect of what it proposes – is critical to ensuring ‘the people’s right to meaningfully engage in the initiative process.’”

The plaintiffs are requesting the court issue an injunction that prevents the Mesquite City Clerk and Council from verifying the number of signatures on the petition, authenticating the validity of the petition and the County Voter Registrar from ultimately placing the initiative on the November general election ballot.

The temporary restraining order request document says “The placing of the Petition on the ballot will result in the residents of Mesquite being able to vote on an unlawful initiative petition. Should it pass, the proposed Ordinance will become law. Plaintiffs only recourse should the Petition pass will be to file a post-enactment lawsuit challenging the Ordinance and initiative process. In order to avoid the need for another possible lawsuit(s) Plaintiffs ask that this Court issue an injunction enjoining the initiative process from proceeding forward on this unlawful Petition.”

The complaint charges that while the petition meets Nevada law requirements that it describe the effect of the initiative in 200 words or less, the “Description of Effect at issue in this case is materially misleading and materially fails to identify the consequences of the Petition’s passage in multiple ways.”

The complaint says that while the title of the petition says, “Mesquite Clean Indoor Air Ordinance,” it addresses smoking indoors and outdoors. The plaintiffs charge that “the Description of Effect fails to identify all the types of smoking” and fails to identify “that the Petition only freely allows smoking in a privately owned single family home and outdoors, with significant limitations.”

Addressing the petition language that goes beyond banning smoking inside casinos, the complaint says, “the Description of Effect fails to identify that the proposed ordinance also seeks to prohibit smoking inside private residences located in a multi-unit housing facility.”

The memo reinforces this point saying “For example, this Petition would prohibit a person who lives in an apartment or townhome from smoking a cigarette in or outside of their home. By any measure, this is not an insignificant effect of this Petition. It seems inconceivable that a person who lives in an apartment or townhome is provided no notice of the real and actual effect this Petition would have on the day to day lives of these people if passed.”

“The Description of Effect also fails to highlight the potential negative economic impacts of the Petition, both on the local government and on the public in general. The City will incur significan additional expenses in implementing, policing, and enforcing the proposed Ordinance. Not only is there no reliable means for collecting money to cover these expenditures, there is actually a real potential for loss of tax revenue as a result of decreased patronage at local businesses,” the Memo says.

The petition “also fails to make clear that there is a mandatory duty to report others’ violations and legal sanctions for failing to do so,” according to the complaint.

Language in the memo spells out that “the Petition imposes significant penalties (including revocation of business licenses) for those who fail to report another’s violation of the indoor-outdoor private residence public and private places smoking ban. It is difficult to imagine a more significant effect that the Petition could have on a potential signer. Particularly since the Petition imposes a mandatory duty to report violations.”

According to the memo, “Instead of putting to use the 200 word limitation, the Committee instead chose to write a public policy argument about the dangers of second hand smoke. They do not even bother attempting to describe how the policy relates to the provisions of the proposed Ordinance. They offer no explanation of current law and how this Petition will change the law, nor do they attempt to inform a potential signer that, for example, their support of this Petition will mean that they can no longer smoke in their apartment, or that they will be subject to a penalty if they fail to report a violation.”

The complaint includes a copy of a State of Nevada Committee Registration Form filed with the Secretary of State on June 1 by the Mesquite Citizens’ Initiative for Clean Indoor Air even though the committee has been collecting signatures for months prior to the filing. The official registration form was signed and filed by Christine Picior on that date.

The committee also acted in an official capacity in April when it submitted the petition to the Mesquite City Clerk even though it had not been properly registered with the state. The political action committee has not filed any contribution and expense reports with the Secretary of State which are due by January 1 of each year. Primarily, that makes it impossible to determine where contributions funding the considerable expenses of the committee come from.

Comments

  1. Jennifer Conklin says:

    I, unfortunately, signed this petition not being aware of the additional things they were trying to have banned. I was under the impression that it was for clean indoor air only when I signed. Is there a way to have my name removed from the petition?

    • Jesse Mccann says:

      I believe the “Decline to Sign Mesquite” Facebook page has a link you can go to to have your name removed

  2. Barbara Ellestad says:

    Ms. Conklin,
    I suggest you contact the City Clerk, Tracy Beck, to determine the correct procedure for removing your name from the petition.
    Barbara Ellestad
    MLN Reporter

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