Justice Maupin on Freedom of Expression
From Judgepedia
Before the court En Banc, and through a Per Curiam opinion, the court reversed a district court’s order that denied a complaint for declaratory and injunctive relief, which sought to prevent the Tax and Spending Control for Nevada Initiative from being placed on the November 2006 general election ballot, because the initiative was not filed in compliance with mandatory requirements set forth in the Nevada Constitution because the copy of the iniative given to the Secretary of State was different then the copy that was distributed among voters. The court held (1) NRS 295.009, which requires initiatives to include a description of effect, and NRS 295.061, which provides the right to challenge an initiative description of effect, does not violate the First Amendment (2) Article 19, sect. 2(4), which requires an initiative’s proponents to file a true copy of the proposed initiative before circulating it must be adhered to strictly (3) procedural constitutional requirements need not necessarily yield to substantive constitutional requirements if the requirements conflict because “the Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision.”
- ON THE SPECIFICS OF THE INITIATIVE: “The TASC initiative generally proposes a constitutional amendment that would (1) impose spending limits for state and certain local governments; (2) require voter approval for new taxes; (3) change the existing Fund to Stabilize the Operation of State Government and the Disaster Relief Account therein, replacing them with a “Budget Stabilization Fund” and “Emergency Reserve Fund,” restricting the definition of “emergency,” barring the Governor and Legislature from appropriating funds in the event of a fiscal emergency; (4) prohibit the state from “directly or indirectly enact[ing] laws or authoriz[ing] the adoption of regulations[ ] requiring the counties and cities of the State to provide new services, expand existing services or conduct new or additional governmental function[s] without appropriating or designating state funding sources to fully support” the same; (5) freeze the “proportion of state revenue paid to all local units of government, taken as a group”; and (6) require that any proposed amendment to the Constitution mandating appropriations for specific projects or services that does not also establish a specific source of additional state revenue dedicated to fully funding those appropriations include a “notice” on the ballot stating that the amendment could be detrimental to other state services.”
- ON WHY THE DESCRIPTION-OF-EFFECT REQUIREMENT UNDER NRS 295.009(1)(b) IS CONSTTITUTIONAL: “Although the Nevada Constitution provides that the power to propose amendments to the Constitution by initiative petition is reserved to ‘the people,’ it also provides that the Legislature may enact laws that provide procedures to facilitate the initiative and referendum process. Additionally, the legislative power includes the broad power to frame and enact laws, unless there is a specific constitutional limitation to the contrary. Here, the plain language of Nevada Constitution Article 19, Section 5 imparts in the Legislature authority to enact laws to facilitate the initiative process, such as requiring a description of effect and allowing challenges on this basis.”
- ON WHAT ARTICLE 19, SECTION 2(4) STATES: “[i]f the initiative petition proposes an amendment to the Constitution, the person who intends to circulate it shall file a copy with the Secretary of State before beginning circulation.”
- ON WHY THE INITIATIVE DID NOT SATISFY ALL THE CONSTITUTIONAL FILING REQUIREMENTS: “Additionally, the committee's argument that it complied with all constitutional filing requirements when it filed the December 2005 legal-sized petition, containing the same section 4(4) language as the circulated petition, is unavailing. Both of the December versions contained defective descriptions of effect and, for that reason, only the March version is operational since it, with its compliant description of effect, was by definition the “copy” that the committee intended to circulate. Article 19, Section 2(4) states, with emphasis added, that “[i]f the initiative petition proposes an amendment to the Constitution, the person who intends to circulate it shall file a copy with the Secretary of State before beginning circulation.”
- ON WHY THE DIFFERENCE BETWEEN THE INIATIVE VERSION IS MATERIAL AND SUBSTANTIAL: (1) “the difference between the two versions' initial 2007-2009 spending limit has been calculated at approximately $1.3 billion, representing 14 percent of the state's budget, and the committee offered no nonspeculative evidence to refute the fiscal analysis. Notably, the circulated version allows for a 21-percent increase in state spending during the initial budget cycle. Contrasted to the March 8 filed version, which would constrain spending to 7.4 percent-a substantial reduction over the historical rate of growth in government spending-the difference is significant. Moreover, because the spending limit for the initial 2009-2011 biennium would become the basis for all future spending limits, the effect of the “typographical error” would reach far beyond the $1.5 billion mark.” (2) “ the circulated version allows for $1.5 billion more in spending per biennium than the filed version, and because, under the circulated version, spending could continue at or even beyond its historic rate, the primary purpose of the TASC measure would not be effectuated under the circulated version. In other words, the circulated petition, as drafted, would have no effect on the very problem that it claimed that it would remedy, i.e., government overspending. Therefore, the circulated version would not be an accurate reflection of the committee's vocalized intent to implement a constitutional limit on government spending. The circulated petition involves more than a mere “typographical error”; it is misleading.” (3) “And as the opponents point out, if the committee were permitted to file multiple versions of the initiative with the Secretary of State and rely on any or all of them, interested parties would be left to guess which version was being circulated, and only when the circulated version was submitted to the county registrars' offices for verification would anyone other than the proponents have the opportunity to review which version was to be placed on the ballot.”
- WHY STRICT COMPLIANCE IS REQUIRED: “The Nevada Constitution is the organic and fundamental law of this state, and to allow a sweeping amendment to it or to this state's legislative acts, without strict adherence to the rules set forth therein, would work against government stability. The strict adherence rule can hardly be considered burdensome, especially when, as here, actual compliance was easily attainable and there exists no acceptable excuse for noncompliance. The importance of following the letter of this state's seminal law becomes even more apparent in a case such as this, when the two versions of the petition differed in such a way that the initiative's substantive meaning was altered. While the committee's error in circulating a different version of the petition appears inadvertent in this case, the resultant effect of the error is that the initiative's stated purpose of cutting government spending would be defeated in favor of the circulated petition's language, which enables government spending to grow above and beyond its historical rates.”
Before the Court En Banc, Justice Maupin, along with Justice Rose, dissented from the majority opinion, which ruled that a Las Vegas erotic dancing municipal code 6.35.100(1), which prohibited dancers from fondling and caressing patrons, was neither unconstitutionally vague or overbroad. The court held (1) the ordinance is not constitutionally vague (2) fondling, caressing, and erotic dance is not per se expressive conduct (3) regulating exotic dance is content neutral (4) the ordinance is not constitutionally overbroad (5) municipal courts “have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws.
In contrast, the dissent, authored by Justice Rose, and joined by Justice Maupin, argues that the ordinance is void for vagueness because the ordinance does not give “a person of ordinary intelligence notice as to the touching that does not fall within the definition of ‘sexual conduct,’ but is nevertheless prohibited.” In addition, the dissent argues (1) the ordinance fails to prevent arbitrary and discriminatory enforcement (2) the ordinance gives no specific guidelines for determining when touching has become permitted, and (3) the law gives law enforcement great discretion in interpreting and enforcing the ordinance.
- ON THE BALANCE BETWEEN FIRST AMENDMENT AND PURPOSE OF THE ORDINANCE: “The purpose of Las Vegas' ordinances regulating erotic dance establishments is to curb the negative secondary effects that may result from such establishments- e.g., increased prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses, fraud, and other criminal activity-while balancing the arguable protection of erotic dance under the First Amendment.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE: “With the above purpose and definitions as context, LVMC 6.35.100(I) prohibits fondling and caressing between dancers and patrons with the intent to sexually arouse or excite. This construction adequately puts dancers and patrons on notice as to what conduct is prohibited. Further, this construction permits touching that is not intended to sexually arouse or excite. Therefore, accidental or incidental touching would not be prohibited under the ordinance.”
- ON WHY THE ORDINANCE PROVIDES AN ADEQUATE STANDARD FOR LAW ENFORCEMENT TO FOLLOW: “The above construction also provides an adequate standard for law enforcement because officers will know that, in order to prosecute someone for violating the ordinance, the prosecutor must prove that the dancer or the patron fondled or caressed the other with the intent to sexually arouse or excite. Because LVMC 6.35.100(I), viewed in its appropriate context, provides adequate notice of the prohibited conduct and provides adequate law enforcement standards, it is not unconstitutionally vague.”
- ON WHY FONDLING, CARESSING, AND EROTIC DANCE IS NOT PER SE EXPRESSIVE CONDUCT: “At the outset, we note that there is no First Amendment issue in prohibiting fondling and caressing in a general sense. Neither action is per se expressive conduct that communicates. Arguably, erotic dance is expressive conduct that communicates, which could be deserving of some level of First Amendment protection. If that is so, fondling and caressing may be protected expressive conduct when part of an erotic dance.”
- ON WHY REGULATING EROTIC DANCE IS CONTENT NEUTRAL: "We conclude that the ordinances regulating erotic dance establishments in general, and LVMC 6.35.100(I) in particular, are aimed at curbing the negative secondary effects of erotic dancing and not at the expressive conduct itself. Therefore, LVMC 6.35.100(I) is content-neutral."
- ON WHY THE ORDINANCE IS NARROWLY TAILORED: “By prohibiting only fondling and caressing with the intent to sexually arouse or excite, LVMC 6.35.100(I) is narrowly tailored to further the City's interests in preventing acts of prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses (such as the inconspicuous sale of drugs possible when a dancer and patron fondle and caress each other during a dance), and acts of fraud.”
- ON JUDICIAL DEFERENCE TO THE LEGISLATURE: “‘[J]udges should not supplant the legislature's role in developing the most appropriate methods for achieving government purposes.’ Although various other regulations may be possible in this case, LVMC 6.35.100(I) is narrowly tailored to achieve the City's purposes.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY OVERBROAD: “We therefore conclude that, even though LVMC 6.35.100(I) reaches arguably expressive conduct that communicates-fondling and caressing as part of an erotic dance-which may be protected by the First Amendment, the City may still proscribe such conduct by the legitimate time, place, and manner restrictions embodied in LVMC 6.35.100(I). Therefore, because LVMC 6.35.100(I) only reaches conduct that the City has legitimately proscribed, the ordinance is not unconstitutionally overbroad.”
