Is the single-subject rule legal? It’s still an open question

Back in 2012, attorney Kermitt Waters mounted his most audacious legal attack on a law that restricts the ability of citizens to propose laws by initiative.

That law, known as the "single-subject rule," says initiatives can only address a single issue. It was put in place in 2005 to prevent crafty special interests from trying to enact unpopular laws by wrapping them inside popular ones.

Waters drew up a barn burner of an initiative: It would have established a gross receipts tax, increased teacher salaries, eliminated property taxes for homeowners, fully funded the Millennium Scholarship, created a no-interest loan program for energy efficiency hardware, and more.

It definitely covered more than one subject. But why not? Waters noted in his legal briefs that the Legislature is also subject to a constitutional single-subject rule for its bills. And the bill that created the single-subject rule itself covered more than one subject!

"Under the Nevada standard, the single-subject rule is [sic] applied to the Legislature is interpreted broadly, but when citizens attempt to pass laws, the single-subject standard is interpreted narrowly and aggressively applied," Waters complained. "It is not a coincidence that the single-subject standard is applied so aggressively when the challenges are filed by powerful political forces that dominate the Legislature."

Indeed, that's exactly how things work. Sadly, Waters' appeal isn't going to change anything.

Instead of filing his petition with the Nevada secretary of state's office and waiting for the inevitable legal challenge, Waters instead presented his petition in court. He asked a judge either to declare the single-subject rule unconstitutional or to conclude that his proposed petition could go before voters unchanged.

But the court ruled that the single-subject rule was constitutional, and because Waters hadn't actually filed his petition, it was premature to decide whether it complied with the law.

Waters appealed in 2013. Briefs were filed by groups ranging from casinos to the Mining Association, the Retail Association and the Chamber of Commerce. You know, those "powerful political forces that dominate the Legislature."

Last week, after nearly 2½ years, the Nevada Supreme Court finally ruled.

Unsurprisingly, justices concluded the trial judge was right to reject Waters' petition. "So long as a legislative proposal, in this case a draft initiative, remains subject to change, its validity is not justiciable and not ripe for adjudication," the five-page ruling reads.

But wait, there's more: Justices dodged the issue of whether the single-subject rule itself is constitutional. Because the petition wasn't ready for legal review, there's no need to address the other claims in the appeal, justices said, "as doing so would result in an advisory opinion."

So the District Court finding that the single-subject rule is constitutional? Reversed as premature!

It's certainly not a victory for Waters, who has labored mightily to get the single-subject question before the court. (He's working at it again this year, with an effort to repeal all the taxes passed by the 2015 Legislature.) But it's also not a defeat, since the court has yet to weigh in on the most important question for initiative writers in Nevada: Is the single-subject rule valid or not?

The real question for court-watchers is this: Was this simply a matter of law, an example of judicial restraint required by precedent? Or does this evidence a disagreement among justices as to the constitutionality of the single-subject rule? Could this signal the potential for overturning the law in the future, if the question is ever properly presented to the court?

— Steve Sebelius is a Las Vegas Review-Journal political columnist and co-host of "PoliticsNOW," airing 5:30 p.m. Sundays on 8NewsNow. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or ssebelius@reviewjournal.com.