The right of the people to petition

Nevada Supreme Court Justice Cliff Young has been around for awhile. He's coming up on 80 years old, set to retire at the end of his term after nearly 20 years with the state's highest court.

So when he writes that the Reno train trench project has the potential to drag down the entire Northern Nevada economy, it might be worth our time to pay attention.

Young wrote a dissenting opinion last week to the Supreme Court's decision to prohibit a public vote on the trench. His comments drew some attention -- particularly the part about the residents of Washoe County "being railroaded" by the project.

When I read the text of his dissent, though, I realized there was much more to it. I also happen to agree with his point of view, so I thought other people might want to read more about Young's opinion.

(If you want to read the majority opinion, as well as Young's dissent, go to www.leg.state.nv.us/scd.)

It's about the train trench, yes. But the larger topic is the apparent futility of Nevada residents attempting to bring public issues to a vote through the initiative process. As Young writes, "If not here, then when and under what circumstances does our constitution allow initiative petitions?"

The thrust of the majority opinion, as argued by government officials from Reno to Carson City to Douglas County in recent months, is that the petitions to bring issues such as the train trench and Fuji Park to a public vote interfere with the "administrative" function of government.

My argument has been that there's no way to know the result of a broad policy until government acts on it, at which time it becomes an administrative function that can't be challenged. Young puts it so much better, with an example to back up his point -- Lincoln County's infamous "Million Dollar Courthouse."

"In 1871," Young wrote, "elected officials of then-thriving Lincoln County rushed to build a courthouse and jail for a total cost of $26,400. A construction contract was entered into with a reputable builder, but the the time the courthouse was completed just a year later, costs had nearly tripled and totaled $75,000.

"During the following years, the economic boom in Lincoln County declined, while the interest on the debt mounted. Not until 1938, sixty-six years later, were the people of Lincoln County able to pay bonds used to finance the project. By that time, the estimated cost of the project had reached over $800,000.

"The courthouse became 'famous for the county's inept financing,'" wrote Young, quoting Ron James' book on Nevada courthouses, "resulting in a nearly seven-figure debt. In serious need of repair, the courthouse was closed in the 1930s, just as the bonds were finally paid -- 'a fitting commentary on how badly the county handled the situation.'"

Young argues a decision of such magnitude -- the trench has a $282 million estimate, more than Reno's annual budget for 1999-2000 -- can hardly be considered a mere administrative function.

"If the city desires to improve the economy of the downtown area, the place to start may be by making it more safe and attractive. Instead, the city seeks to build a quarter of a billion dollar trench through which private trains will pass. If the project fails, the impact may have financial consequences not only for the city, but the entire region as well. It seems only fair that citizens who ultimately will bear the financial burden be allowed to vote on it," Young wrote.

He goes on to point out how we constantly preach to people to get out and vote, "Yet when an issue such as the one at hand sparks voter interest, the city argues that voting is impermissible."

Going one step further, I would submit the court rulings striking down citizen initiatives render meaningless the guarantee in the First Amendment of the U.S. Constitution of the people's right "to petition the government for a redress of grievances."

I do have to disagree with Justice Young on one point, because it is exactly the point in which Carson City enters the argument.

He makes a distinction between Reno's train trench and Carson's Fuji Park, saying the latter involves Carson's use and management of real property. "Such land use decisions are traditionally administrative in nature and do not possess the unique policy and financial aspects present here," he wrote in a footnote.

I can't see the difference. I think it is a policy decision for a local government to want to sell public park land to private developers. If a group of residents gets together a petition with enough signatures, then the petition ought to go to a vote.

My own historical example comes from 1951, when the Mills family donated 72 acres to Carson City for use as a park.

The deed restriction specifically says if the city decides to use it for anything else, then the property reverts to the Mills family.

I believe the Mills family wanted to make sure it never crossed anyone's mind in city government to sell that property for development. I think they saw it as more than an administrative function of city officials' power to buy and sell property, but as a policy change that would affect the entire city.

I'm glad they had that foresight, given the current interpretation of Nevada law.

Barry Smith is editor of the Nevada Appeal.