Initiative questions argued before high court

Anti-smoking groups told the Nevada Supreme Court on Wednesday that, contrary to the ruling by Carson District Judge Bill Maddox, their Nevada Clean Air Act ballot question was never intended to outlaw smoking in hotel and motel rooms.

The issue was raised during arguments over whether the petition to ban smoking in almost all public places should go before voters in November.

Maria Elizabeth Pence, representing the American Cancer Society, American Lung Association and other anti-smoking groups, agreed to stipulate that was not their intent. But Kirk Lenhard, representing Nevada bar and tavern owners, refused to accept that stipulation.

While resort owners are primarily concerned about the hotel-motel ban, bar and tavern owners want the entire petition removed from the ballot because they fear it would prohibit smoking in more than 90 percent of bars. The hotel-motel ban, they believe, is their best chance to kill the petition.

The language of the petition bans smoking in all bars except "stand alone" establishments which serve food only as an incidental item. Tavern owners said nearly all bars have a menu and would be barred from allowing smokers, which, they argue, goes beyond the stated intent of the petition: To protect children from second-hand smoke.

Lenhard argued the language in the petition's description is illegally misleading because it doesn't explain that the ban would apply to nearly all bars and taverns. He said a voter would have to read deep into the language of the petition to discover that fact.

The high court took the case under submission and is expected to rule within a couple of weeks so that ballots can be printed either with or without the question in time for the November election.

The court did the same with a challenge of a Boulder City initiative which seeks to prevent development of more than 100,000 acres of land.

The issue raised was the same as the court debated in the Fuji Park and Douglas County anti-growth cases - whether the issue was a policy question which voters are entitled to decide or an administrative question, which Nevada's Constitution reserves for governmental governing bodies.

The lower court pulled the four questions involved off the ballot. Travis Chandler, representing the group trying to prevent massive development of the city-owned land, argued the ballot questions were an attempt to set policy, not to interfere with administrative authority of the city.

Chief Justice Bob Rose questioned that statement saying that, like the Fuji Park case, the ballot questions deal with controlling development of a specific piece of land, which is an administrative function, not a policy decision.

In the Fuji Park case, opponents of the plan to sell part of the property were blocked by the court which said that decision is up to the city. In the Douglas County case, the court put the issue on the ballot saying it was written as an overall policy decision to restrict growth and development in the county.

That argument was made by Paul Larsen representing Boulder City.

Justice Jim Hardesty questioned what would happen if the high court changed the rules so voters could stick their nose into every decision asking if they should decide such things as which potholes in a street should be fixed.

"Are we opening the door to allow, by initiative petition, a process that effectively eliminates representative government in the state of Nevada?" he asked.

Chandler said no because voters wouldn't go that far. But he said they should have the right because the current system denies the public's right to override their government.

"The power does belong to the people," he said.

The stiff questioning continued during a hearing on an initiative aimed at curbing eminent domain abuses, with justices again focusing on the single-subject requirement for ballot questions and saying the plan was ambiguous.

Attorney Mark Ferrario, representing government groups trying to block the People's Initiative to Stop the Taking of Our Land, or PISTOL, argued that the plan is "anything but clear."

Ferrario added that the proposal is so broad that a decision by the state to locate a freeway in one area rather than another could trigger claims from business owners whose land wasn't needed for the project but still thought they were somehow damaged.

The PISTOL opponents include Clark County Commissioner Bruce Woodbury, Nevadans for the Protection of Property Rights Inc., Clark County, the Las Vegas Chamber of Commerce, Nevada Contractors Association, Associated General Contractors, Nevadans for Nevada, Southern Nevada Water Authority, Las Vegas Valley Water District and the Regional Transportation Commission of Southern Nevada.

PISTOL proponents say they want to stop governments from acquiring private land through eminent domain and then selling the land for private development. The effort was a reaction to last year's U.S. Supreme Court ruling allowing governments' eminent domain authority to be used to obtain land for commercial purposes that generate tax revenue.

• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.