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December 11, 2018

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Judge denies motion to dismiss Boulder City term-limit lawsuit

A judge has denied a motion to dismiss a lawsuit stemming from a ballot question passed by Boulder City voters in November that would limit terms for committee and commission members.

Judge Susan Scrann heard oral arguments from the city and lawyers representing the five citizen petitioners last Friday and asked for more time to consider her ruling, which she handed down on Monday.

She denied the defendants' motion to dismiss, which had cited Nevada's anti-SLAPP (strategic lawsuit against public participation) laws, saying that ballot initiatives were not protected by the statutes.

But, as Judge Jerome Tao had noted in a similar case last week, Scrann expressed her concern about the behavior of Boulder City in suing its own citizens.

And although she ruled that anti-SLAPP statutes did not apply, as the defendants' attorneys Tracy and Linda Strickland had asserted, Scrann did open another avenue for the defendants to have the case dismissed.

Boulder City, which has been represented by Paul Larsen of Lionel, Sawyer and Collins on behalf of City Attorney Dave Olsen, will have to show at a Feb. 25 hearing that its lawsuit does not violate another section of state law.

At last Friday's hearing on the case, as well as in her written ruling, Scrann questioned why Boulder City didn't utilize a different state statute -- Chapter 43 -- which describes a process called "judicial confirmation law." Scrann said precedent shows that, citing Chapter 43, municipalities can ask a court to rule on the legality of an ordinance without suing their citizens.

"Boulder City was aware of (Chapter 43)," Scrann wrote, "but chose not to use it although case law shows its use is appropriate for the purpose of challenging an ordinance's validity."

Most of the defendants in the so-called "term limit" case have faced other lawsuits for one or two other ballot questions. The city challenged a question regarding the city-owned golf courses prior to the election and also filed a lawsuit challenging the legality of a question related to the city's debt after the November election.

"This suggests harassment," Scrann said.

At the Feb. 25 hearing, the city's counsel will have to show that the lawsuit was not "filed for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."

If Scrann rules against the city, the five petitioners would be entitled to attorney fees, which the Stricklands have said total about $9,700, and the case would be dismissed.

The term-limit question, which would limit appointed members of Boulder City's various committees and commissions to serving no more than 12 years, passed with 60 percent of the vote in November.

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