Citizens for a Public Train Trench Vote v. City of Reno

53 P.3d 387, 118 Nev. 574, 118 Nev. Adv. Rep. 60, 2002 Nev. LEXIS 73

• Court: Nevada Supreme Court
• Decided: September 6, 2002
• Docket: 39898
• Status: Published

Opinions

OPINION

Per Curiam:

The Reno City Council, after years of study and with county, state and federal support, decided to lower the railroad tracks through downtown Reno below street level to mitigate the adverse effects of downtown train traffic. Pre-construction steps have been completed, and the City is now ready to begin construction. This grade separation project, officially designated the Reno Transportation Rail Access Corridor (ReTRAC) and sometimes referred to as the Reno Railroad Corridor, is commonly known as the train trench.

Citizens for a Public Train Trench Vote submitted to the Reno City Clerk a municipal initiative petition, which proposed that the following prohibition be enacted: “The City of Reno shall not construct a depressed trainway (“train trench”) within the existing railroad right of way through the central portion of the City of Reno.” The Reno City Clerk certified the initiative petition, and the Reno City Council forwarded the initiative petition to the Registrar of Voters under NRS 295.215 for placement on the September 3, 2002 primary ballot. The Reno City Attorney, at the City Council’s direction, then sought a judicial declaration that the initiative is unconstitutional and an injunction to keep the initiative off the ballot. On June 19, 2002, the day the primary election ballots had to be sent to the printer, the district court entered a written order declaring the initiative unconstitutional — because it dictates an administrative decision and because it impairs contractual obligations — and permanently enjoining the Washoe County Registrar of Voters from placing the initiative on any city ballot.

The initiative’s proponents filed this appeal, challenging the district court’s injunction and seeking to have the initiative included on the November 5, 2002 general election ballot. We conclude that the initiative concerns an administrative matter, which exceeds the electorate’s initiative power, and that the district court properly enjoined its inclusion on the ballot.

BACKGROUND

The railroad tracks through downtown Reno have long been both boon and bane, and the City has considered various solutions to the problems posed by the tracks’ location. In 1936, the United States Bureau of Public Roads, precursor to the Federal Highway Administration (FHWA), proposed elevating the tracks. In response, the City Engineer recommended lowering the tracks below street level to maintain the City’s character. A 1942 report, which evaluated various alternatives, including relocation, recommended maintaining the tracks in their current location and lowering them below street level. The report estimated that lowering the tracks would cost $1.4 million. That same year, the Reno Chamber of Commerce endorsed the lowered tracks project as “A No. 1 civic improvement for the readjustment period after the war.” Subsequent reports, prepared in 1944, 1968, 1972, 1976 and 1980, all further described the benefits to be obtained by lowering the tracks and updated the associated cost estimates.

In 1996, the United States Surface Transportation Board (STB) approved a merger between the Union Pacific Railroad Company (UP) and the Southern Pacific Railroad Company (SP). In evaluating the proposed merger, STB estimated that rail traffic through Reno would increase from twelve trains per day to as many as thirty-six trains per day by 2030 and determined that the increase would adversely impact ground transportation, pedestrian safety, service delivery systems and other environmental factors. STB identified Reno, Nevada, as one of two cities that would need special assistance to mitigate the adverse effects of increased traffic following the merger. Reno filed a lawsuit in federal court to prevent the merger.

On June 17, 1997, during negotiations with UP to develop a depressed trainway project to settle the dispute, the City Council passed a resolution declaring the depressed trainway project a priority for Reno. On December 1, 1998, Reno and UP reached a settlement and executed a Memorandum of Understanding (MOU) that cleared the way for construction of a railway trench through Reno. The MOU specified that UP would transfer real property, air rights and leases to Reno, and provide $15-17 million in engineering services, materials and labor to construct the trench, and that Reno would withdraw its appeal and petition STB jointly with UP to remove all restrictions on the number of trains that could pass through the city. Later that month, at UP and Reno’s joint request, STB approved the MOU and made it a condition of the UP/SP merger. Reno and UP subsequently modified and amended the MOU, and extended its term to December 3, 2005.

In May 1999, Reno and the Nevada Department of Transportation began a federally-sponsored process to develop preliminary engineering, technical and environmental reports, which would be used to complete the mandatory Final Environmental Impact Statement (FEIS) for the project. The FEIS, which took eighteen months and $2 million to complete, identified twenty-six alternatives to ameliorate the adverse effects of train traffic through Reno. Five alternatives, including a “no-build” alternative, were chosen for further consideration, and in February 2001, the FHWA selected one of the alternatives as the best choice for the Reno Railroad Corridor: Alternative 5, a Modified Extended Depressed Trainway in the current UP right-of-way. On February 27, 2001, the City Council approved Alternative 5 and directed city staff to take all necessary action to advance that alternative.

In April 2001, Reno formally solicited a Project Management Consultant for the ReTRAC project. In July 2001, the City Council awarded a $4.9 million contract to the Truckee Meadows ReTRAC Team to assist in various matters relating to engineering and design specifications, and the City began the design/build proposal process. In November 2001, the City Council selected four design/build team finalists and accepted the Project Management Consultant’s project cost estimate review. In December 2001, the City Council approved $300,000 to reimburse unsuccessful design/build proposers, and on January 16, 2002, the City issued the final request for proposal. On July 16, 2002, the City Council selected Granite Construction Company’s design/build proposal and decided to award Granite the construction contract. The City has until September 13, 2002, to give Granite Construction the “notice to proceed” with work on the project; after that, the City incurs a substantial penalty (about $15,000 per day), and if the notice to proceed is not issued by November 12, 2002, Granite Construction can raise its bid price or walk away from the project altogether.

The City Council, with county, state and federal assistance, has also developed comprehensive financing plans for the train trench project. Financing will come from numerous sources, some of which have been in place for several years:

1. A 1/8 cent countywide sales tax, which was authorized by the Nevada Legislature in 1997, was approved by the Washoe County Commission in 1998 and took effect April 1, 1999;

2. A 1 percent room tax increase within a specially designated district, which was authorized by the Nevada Legislature in 1997, was adopted by the City in 1998 and took effect January 1, 1999;

3. $115 million in revenue bonds and FHWA/DOT loans, which will be repaid from the countywide sales tax and 1 percent room tax;

4. State and federal grants;

5. UP contributions under the MOU;

6. Tax revenue from a Downtown Special Assessment District, which was created in November 1998; and

7. City of Reno general funds.

The tax proceeds, plus any interest and other income generated by it, must be used for “the cost of the acquisition, establishment, construction or expansion of one or more railroad grade separation projects,” including the payment and prepayment of principal and interest on notes, bonds or other obligations issued to fund such projects.¹

The initiative

On January 23, 2002, the individual appellants filed with the City a Notice of Intent to circulate an initiative petition, which provides:

The people of the City of Reno, of the State of Nevada, do enact as follows:

The City of Reno shall not construct a depressed trainway (“train trench”) within the existing railroad right of way through the central portion of the City of Reno.

These five individuals formed Citizens for a Public Train Trench Vote, a political action committee organized to bring the train trench initiative to a public vote, and gathered almost 15,000 signatures on the petition.

On April 11, 2002, the trench opponents submitted the municipal initiative petition to the Reno City Clerk, who certified the petition’s sufficiency on April 19, 2002.

The Reno City Council accepted the Clerk’s certificate of sufficiency, declined to adopt the proposed ordinance and forwarded the initiative petition to the Registrar of Voters under NRS 295.215 for placement on the September 3, 2002 primary ballot. The City Council also directed the City Attorney to challenge the initiative’s constitutionality in court.

The litigation

On May 6, 2002, the trench opponents filed a petition for judicial review or a writ of prohibition or injunctive relief, together with a motion for temporary restraining order and preliminary injunction, to stop the City from issuing the ReTRAC bonds. On May 9, 2002, the City moved to dismiss the petition, and filed a counterclaim for a declaratory judgment that the initiative is unconstitutional and for an injunction enjoining its placement on the ballot.

Also on May 9, 2002, a political action committee that supports the train trench, Citizens for Private Enterprise, and several pro-trench businesses, filed an application for writ of mandamus or complaint for declaratory and injunctive relief, seeking to prevent the initiative’s placement on the ballot.

On June 3, 2002, the two cases were consolidated. The trench opponents moved for summary judgment against the City, and for dismissal against the trench supporters, on the basis that all lacked standing to challenge the initiative’s validity. The City and the trench supporters opposed the motions, and the district court denied them.

On June 6 and 7, 2002, the district court conducted a bench trial. During closing argument, counsel for the trench opponents conceded that the train trench is a public work project, which the City may undertake without passing an ordinance. Counsel also conceded that the initiative would be unconstitutional if it concerned an administrative, rather than a legislative, act and in that instance should be kept off the ballot. Counsel further conceded that the initiative would force the City to breach the MOU, which probably impairs the obligations of that contract.

On June 11, 2002, the district court entered an order denying the trench opponents’ petition to prevent the bond sale. That order is not at issue on appeal.

On June 19, 2002, the district court entered findings of fact, conclusions of law and an order granting a declaratory judgment in favor of the City and the trench supporters, and permanently enjoining the Washoe County Registrar of Voters from placing the initiative on any city election ballot. The court ruled that the initiative is unconstitutional because it dictates an administrative decision to the City, which the people may not do through the initiative process, and because it would impair the obligation of contracts, in violation of Nevada Constitution Article 1, Section 15.

The trench opponents challenge the injunction and its basis. They assert that the voters have a constitutional right to propose and enact new laws through the initiative process, and contend that whether the initiative is administrative or legislative and whether it violates the constitution should be decided after the election.

DISCUSSION

Initiative is the power of the people to propose and enact new laws.² The power is contained within Article 19, Section 2(1) of the Nevada Constitution: “[T]he people reserve to themselves the power to propose, by initiative petition, statutes and amendments to statutes and amendments to this constitution, and to enact or reject them at the polls.” According to the Nevada Constitution, the initiative powers provided in Article 19 “are further reserved to the registered voters of each county and each municipality as to all local, special and municipal legislation of every kind in or for such county or municipality.”³ The initiative power applies only to legislation, however; it does not extend to administrative acts.⁴

Legislative versus administrative acts

Recently, in Glover v. Concerned Citizens for Fuji Park,5 we discussed the principles for determining whether a municipal ordinance is legislative or administrative. We held that a permissible legislative ordinance is one that creates a permanent law or lays down a rule of conduct or course of policy for the guidance of the citizens or their officers. On the other hand, an impermissible administrative ordinance is one that simply puts into execution previously-declared policies or previously-enacted laws, or directs a decision that has been delegated to the local government.⁶

Other state courts have also drawn distinctions between legislative matters and administrative matters. The California Court of Appeal, for example, stated in City of San Diego v. Dunkl7 that “[t]he power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.” The Dunkl court explained further that acts constituting a declaration of public purpose, and making provisions for ways and means of its accomplishment, may be generally classified as calling for the exercise of legislative power; whereas, acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are those which must be done to carry out legislative policies and purposes already declared by the legislative body, or which are inherent in its existence.⁸

The Wisconsin Court of Appeals drew a similar distinction in Save Our Fire Department Paramedics v. City of Appleton,9 and added that ordinances relating to subjects of permanent and general character are regarded as legislative, whereas ordinances relating to subjects of temporary and special character are regarded as administrative.

The Oregon Supreme Court phrased the distinction slightly differently in Foster v. Clark,10 stating that the distinction between legislative and administrative matters “is the distinction between making laws of general applicability and permanent nature, on the one hand, as opposed to decisions implementing such general rules, on the other.”

From all of these cases and others like them, one overarching principle may be derived: regardless whether an initiative proposes enactment of a new statute or ordinance, or a new provision in a constitution or city charter, or an amendment to any of these types of laws, it must propose policy — it may not dictate administrative details.¹¹

While courts draw similar distinctions, they are not entirely consistent about which category any particular type of measure fits within. In Foster,12 the Oregon Supreme Court explains one reason why this is so, using the issue before it — whether naming or renaming a street is a legislative matter or an administrative matter — to demonstrate:

A city’s practice of naming or renaming streets only through specific ordinances may establish that the activity is “legislation” subject to the initiative and referendum process. Another city’s practice of naming and renaming streets only through a process akin to that established for the City of Portland by [municipal ordinance] may establish that the activity is “administrative” and not subject to the initiative and referendum process. The point is, whether a particular municipal activity is “administrative” or is “legislation” often depends not on the nature of the action but the nature of the legal framework in which the action occurs.

Applying these principles, and considering the legal framework within which the train trench initiative was proposed, we conclude that the initiative is not legislation. The initiative does not establish a new course of policy to guide Reno’s citizens or their officers regarding the choice of public work projects in general or railroad grade separation projects in particular, and it does not declare any public purpose or make any provisions for accomplishing it. Instead, the initiative prohibits the construction of a particular public work project, the train trench, in a particular location, the existing right of way through the city. The initiative does not prohibit the construction of a train trench in general, or the construction of a different type of grade separation project within the right of way. The initiative relates to a subject of very special character, not one of general character.

The authority to undertake public work projects has been legislatively delegated to local governments by statute.¹³ And although Reno must comply with various state and federal statutes governing public works, no regulation requires it to take legislative action or obtain voter approval before commencing a local improvement or public work project. To the contrary, NRS 271.265 specifically authorizes cities, without any election, to acquire, improve, equip, operate and maintain various local improvement projects, including overpass, underpass, street and transportation projects, and any combination of these projects. Similarly, the Reno City Charter, section 6.010, permits the City Council, without any election, to acquire, improve, equip, operate and maintain, convert to or authorize various local improvement projects, including overpass, underpass and street projects.

The trench opponents argue that the ReTRAC project is not an underpass project as contemplated in these laws, because NRS 271.245 defines an “underpass project” as “any tunnel, tube or other structure or facilities for the transportation of pedestrians, motor and other vehicles, and utility lines,” and NRS 482.135 defines “vehicle” in a manner that excludes trains. The argument is not persuasive because the NRS 482.135 definition of “vehicle” is limited to that chapter, and the trench opponents have provided no reason for grafting it into NRS chapter 271. But even if the ReTRAC project could not be considered an underpass project, it fits within the other project descriptions and qualifies as a local improvement project authorized by NRS 271.265 and the City Charter.

In addition, although they conceded in the district court that the train trench is a public work project, the trench opponents now assert that it is not — because the train track property is owned by the railroad, not the City, and because the train trench is not within NRS 338.010(1 l)’s definition of “public work.” The trench opponents’ new assertion is without merit. UP agreed in the MOU to transfer the real property upon which the trench will be located to the City. NRS 338.010(11) defines “public work” to include “any project for the new construction, repair or reconstruction of: (a) A project financed in whole or in part from public money for: ... (5) Public streets and alleys; . . . and (10) All other publicly owned works and property whose cost as a whole exceeds $20,000.” The train trench fits within the NRS 338.010(ll)(a)(5) and (10) definitions. We conclude that the grade separation project is a public work and that the choice of the train trench as the best way to execute the project is an administrative decision to be made by the Reno City Council, not the electorate.¹⁴

Pre-election intervention

In Fuji Park,15 we resolved the question whether pre-election judicial intervention is warranted when an initiative petition improperly proposes an administrative measure, or otherwise exceeds the electorate’s power; we held that pre-election intervention is warranted because an initiative that fails to meet the threshold requirement that it propose only legislation is void.

Substantive validity and standing

We need not reach the question whether the train trench initiative, if enacted, would violate the contract clause or any other provision in the state constitution. Nevertheless, we note that when a proposed initiative meets all threshold procedural requirements, pre-election review of substantive challenges is not generally permitted,¹⁶ unless the proposed initiative is patently, or plainly and palpably, unconstitutional.¹⁷

We also need not reach the question whether the non-governmental respondents have standing to challenge the initiative’s validity, because the City’s standing was clearly sufficient to sustain the action.¹⁸

CONCLUSION

We conclude that the initiative prohibiting construction of a train trench within the existing right of way through downtown Reno exceeds the electorate’s initiative power because it concerns an administrative rather than a legislative act. Accordingly, we affirm the district court order permanently enjoining the Washoe County Registrar of Voters from placing the train trench initiative on any city election ballot.¹⁹

1 1991 Nev. Stat., ch. 506, § 24, at 2407.

2 Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 537, 516 P.2d 1234, 1236 (1973).

3 Nev. Const. art. 19, § 4.

4 Forman, 89 Nev. at 537, 516 P.2d at 1236.

5 118 Nev. 488, 50 P.3d 546 (2002).

6 Id. at 494, 50 P.3d at 550.

7 103 Cal. Rptr. 2d 269, 280 (Ct. App.) (quotations and emphasis omitted), cert. denied, 534 U.S. 892 (2001).

8 Id.

9 389 N.W.2d 43, 47-48 (Wis. Ct. App. 1986).

10 790 P.2d 1, 6 (Or. 1990).

11 The initiative petition did not specify that it was proposing the enactment of an ordinance, but counsel for the initiative proponents characterized it that way.

12 790 P.2d at 7.

13 See NRS chapter 338 (public works projects); see also NRS chapter 271 (local improvements).

14 We note that although the dissent raises some interesting points with respect to the train trench project, it does not address the legal issues thát we are called upon to decide.

15 118 Nev. at 498-99, 50 P.3d at 552-53.

16 Hessey v. Burden, 615 A.2d 562, 572-74 (D.C. 1992) (reviewing various states’ cases regarding pre-election challenges to the validity of proposed*initiatives); see James D. Gordon III & David B. Magleby, Pre-election Judicial Review of Initiatives and Referendums, 64 Notre Dame L. Rev. 298 (1989); see also Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 802 P.2d 1280 (1990) (noting that this court had always strictly limited its pre-election intervention to cases involving violations of state constitutional or statutory rules governing the procedures for placing initiatives and referendums on the ballot, and declining to enjoin an initiative that, if enacted, could later be held unconstitutional).

17 Hessey, 615 A.2d at 573; see Stumpf v. Lau, 108 Nev. 826, 839 P.2d 120 (1992) (holding that this court may enjoin a ballot question that, if enacted, would constitute a plain and palpable violation of the United States Constitution and would be inoperative under any circumstances or conditions).

18 See In re Ballot Title 1999-2000 No. 215, 3 P.3d 11, 14 (Colo. 2000) (choosing not to address an association’s standing when its arguments were identical to those of a registered elector with standing); Mazzone v. Attorney General, 136 N.E.2d 358, 363 n.4 (Mass. 2000) (noting that it had often chosen not to reach the question of organizational or official standing when the standing of the individual voters was sufficient to sustain the action).

19 The Honorable A. William Maupin, Chief Justice, and The Honorable Nancy Becker, Justice, voluntarily recused themselves from participation in the decision of this matter.