Wednesday, July 21, 2004
Copyright © Las Vegas Review-Journal

CONTESTED PETITIONS: Questions to appear on ballot

Measures to raise minimum wage, ban frivolous lawsuits qualify, judge rules

CARSON CITY -- Two initiative petitions -- one to raise the minimum wage by $1 an hour and the other to ban frivolous lawsuits -- qualify for the November ballot, a district judge ruled Tuesday.

After 90 minutes of arguments, Carson City District Judge Bill Maddox ordered Secretary of State Dean Heller to qualify the measures.

Maddox, noting that time is of the essence to get the measures ready for the Nov. 2 general election, ruled from the bench. The decision means that the secretary of state's office will now proceed with preparing the language for the ballot questions.

Sam McMullen, an attorney for the Las Vegas Chamber of Commerce, which opposes the frivolous-lawsuit measure, indicated an appeal is likely.

The issue before the court was whether secretary of state regulations governing the signature-gathering process created an unconstitutional double standard: one for gatherers who are registered voters and another for nonregistered voters.

Petitions circulated by a registered voter require that person to sign an affidavit that the signatures are believed to be valid. But nonregistered voters must sign an affidavit and have one of the registered voters who signed the petition sign a second affidavit as well.

Because some of the petitions did not have the required second affidavit, Heller discounted 13,994 signatures for the minimum wage petition, causing it to fall short of the 51,337 needed to qualify for the ballot. He did the same to the frivolous lawsuit measure, discounting 10,331 signatures.

But for the affidavit issue, the measures would have qualified.

In his ruling, Maddox said the free speech rights of petition-gatherers outweighed any interest the state might have in requiring duplicative affidavits when those collecting signatures were not registered voters.

Maddox said the rule is flawed: Either the registered voter who signs the affidavit has to observe all the other signers, which would violate a 1999 U.S. Supreme Court decision on access to the ballot, or the voter would sign without having any knowledge of the other signers, which makes the requirement useless.

Maddox appeared to signal his intent during oral arguments, asking Senior Deputy Attorney General Victoria Oldenburg about the second affidavit.

"What useful purpose does it serve? How does that answer anything?"

But Oldenburg said petition groups were raising the constitutional issue to mask a failure on their part to follow the process.

She said their arguments were an effort "to distract the court."

Attorneys Bob Crowell and Eric Myers, representing the frivolous lawsuit and minimum-wage proponents, respectively, argued the requirement for the second affidavit when nonregistered voters circulated petitions created a higher burden, in violation of the U.S. Constitution.

"The state cannot establish that it has an important government interest in this second affidavit," Myers said. "The burden far outweighs the state interest."

But McMullen said the affidavits do serve a purpose. When petitions are turned in, there is a short window to check to ensure signatures were gathered properly, he said. If the only affidavit is from a hired signature gatherer who may have left the state, that person cannot always be found, he said. If a registered voter also signs an affidavit, that person often can be located for questioning, McMullen said.

Also arguing against the two petitions was attorney Weldon Havins, representing the Clark County Medical Society. The society opposes the frivolous-lawsuit measure, claiming it is one of two measures backed by trial lawyers whose intent is to undermine medical malpractice insurance reform.

Danny Thompson, secretary-treasurer of the AFL-CIO, which pushed the minimum-wage measure, said the ruling was proper and that the Supreme Court should come to the same conclusion if there is an appeal.

He criticized both the secretary of state and attorney general for invalidating the signatures in the first place.

"I think you should put crime scene tape around the secretary of state's office and the attorney general's office for trying to stop the will of the people of this state," Thompson said. "I think a crime was committed against the people of this state."

Chief Deputy Secretary of State Renee Parker said her office will probably not appeal the ruling. Time is critical to get the measures ready for the ballot, she said. The language has to be finalized by the end of August.

McMullen said he would have to consult with the chamber but that the ruling and case raise important constitutional questions that should be resolved by the Supreme Court.