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December 11, 2018

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Judge sanctions Boulder City for suing citizens over ballot issue

City attorney Dave Olsen to confer with city council before pursuing state Supreme Court appeal

A Clark County District Court judge sanctioned Boulder City on Friday for suing a group of citizens over a ballot question, saying that a lawsuit was not the appropriate means to question the ballot measure's legality.

Judge Susan Scrann ordered the city to pay $10,000 in attorney fees plus $925 in court fees on behalf of the five citizens named in the lawsuit. City Attorney Dave Olsen argued that the ordinance, which limited terms for appointed city committee members, infringed on the city council’s right to make administrative decisions.

The question, which was on the November ballot, was approved by voters.

Scrann also ruled that the lawsuit be consolidated with another case over a separate ballot question also passed in November that called for a special election if the city planned to go into debt $1 million or more.

Boulder City should have pursued another avenue, called judicial confirmation law, or Chapter 43 in the Nevada Revised Statutes, Scrann said. Under Chapter 43, the city could have asked for a ruling on the ordinances’ legality without naming citizens as defendants in a lawsuit.

Scrann also said she believed the city was “forum shopping” by filing separate lawsuits that addressed the same issue -- whether the ordinances were administrative or legislative in nature -- to get different rulings from different judges.

Scrann stayed her order to give Boulder City 30 days to appeal her decision to the Supreme Court.

Olsen said he would ask the city council for approval before proceeding with an appeal.

What happens next is “new ground for all of us,” attorney Paul Larsen, who is representing the city on behalf of Olsen, told the Sun after the hearing. Larsen is a lawyer with the law firm Lionel, Sawyer and Collins, which has been paid more than $130,000 to pursue the cases.

Scrann’s ruling stemmed from a motion to dismiss filed by Tracy and Linda Strickland, attorneys for the defendants. The Stricklands had cited anti-SLAPP (strategic lawsuit against public participation) statutes.

The judge denied their motion, but then ordered Boulder City to “show cause” that it had not harassed the citizens by naming them as defendants instead of pursuing the Chapter 43 avenue. Scrann decided Friday that the city had not justified its actions.

Separately, the Stricklands filed an anti-SLAPP motion to dismiss in the debt case, which was denied by Judge Jerome Tao in January.

At Tao’s suggestion, though, the Stricklands appealed his ruling to the Nevada Supreme Court.

The Supreme Court has asked the Stricklands to prove that the court has jurisdiction to hear an appeal on Tao’s ruling, as it was not a final judgment. Final judgments are usually issued before a case is appealed to the Supreme Court. They filed that brief on Friday, Tracy Strickland said.

The question still remains whether the ordinances were administrative or legislative in nature, Scrann said, which was her reasoning for consolidating the cases.

If the Supreme Court rules that it does have jurisdiction, then the state’s highest court would hear the appeals for both the term-limit and debt lawsuits at the same time. If the Supreme Court rules it does not have jurisdiction, then the cases would come back to the district court, most likely in Tao’s courtroom, for a ruling on the administrative versus legislative issue.

Scrann also ordered the city to dismiss any of the petitioners who ask to be dismissed from the lawsuit.

The debt question passed with 58 percent of the vote in November; the term-limit question passed with 60 percent.

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