Now a) 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 2 26 27 28 IMUHER 29. PR Sep nv IN THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR CARSON CITY JOHN WALKER, an individual; THE CENTER FOR BIOLOGICAL DIVERSITY, a_ | Ca: 501(c)(3) registered charitable organization, |Dept. 2 No. 23 OC 001 21B Plaintiffs/Petitioners, vs. JAMES A. SETTELMEYER, an individual; JOSEPH M. LOMBARDO, in his official capacity as Governor of the State of Nevada; DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES, STATE OF NEVADA, a political subdivision of the State of Nevada, Defendants. ORDER DENYING MOTION FOR SUMMARY JUDGMENT, PETITION FOR WRIT OF QUO WARRANTO, AND PETITION FOR WRIT OF MANDAMUS PROCEDURAL BACKGROUND Plaintiff/Petitioners, John Walker and The Center for Biological Diversity, filed a motion for summary judgment and a memorandum of points and authorities in support of their petitions for writ of quo warranto and writ of mandamus. The matter has been fully briefed, the Court being fully advised in the premises, and good cause appearing, the Court enters this order. Page 1 of 67a 10 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 FINDINGS OF FACT ‘The Court finds the following facts are undisputed. Settelmeyer became a member of the Nevada State Senate beginning in 2011 and left office on November 9, 2022. During Settelmeyer’s service as a state senator, the salary for the Director of NDCNR ‘increased multiple times, including twice during his last recent term. On January 6, 2023, less than one year after Settelmeyer’s term as a senator ended, Governor Lombardo appointed him director of Department of Conservation and Natural Resources (NDCNR). ‘The office of Director of DCNR is a civil office of profit. During Settelmeyer’s last term, the Nevada Legislature enacted two cost-of-living adjustments (“COLAs") that increased State officials’ salaries. The COLAs were not limited to the office of the Department director, they applied to hundreds of positions across State government. ‘A witness testifying for AB 493, the COLA that is currently in force, explained that the combined COLAs for State employees over the last decade have been 10% below the inflation rate, ‘The 1% COLA for fiscal year 2023 was significantly below the 4.6% inflation rate that had been measured since the last COLA. Settelmeyer voted against AB 493 but the bill passed. ANALYSIS Standing Plaintiffs/Petitioners argue they have standing to bring their claims under NRS 45.010(1) and NRS 35.050, and pursuant to the public interest standing analyses in Schwartz v. Lopez, 132 Nev. 732, 382 P.34 886 (2016), and its follow-on case, Nevada Pol'y Rsch. Inst. Inc. v. Cannizzaro, 138 Nev. Adv. Op. 28, 507 P.3d 1203 (2022). Under the public interest analysis in Schwartz, a plaintiff can establish standing if: (1) the case involves an issue of significant public importance; (2) the case involves a challenge to Page 2 of 67Cena oae 10 i 12 13 u 15 16 Ww 18 19 20 21 22 23 24 25 26 27 28 a legislative expenditure or appropriation on the basis that it violates a specific provision of ‘Schwartz, 132 Nev. at the Nevada Constitution; and (3) the plaintiffs are appropriate parti 743, 382 P.3d at 894-95. In this case, assuming that a constitutional challenge to a gubernatorial appointment presents an issue of significant public importance, and that Plaintiffs are appropriate parties, Plaintiffs’ argument still fails because their argument that the legislative expenditure is the source of the challenge does not ring true. The source of the challenge is not the legislative expenditure that was passed. while Settelmeyer was a senator, the source of the challenge is the director appointment in January 2023. Plaintiffs have not proved they have suffered an injury-in-fact traceable to the challenged conduct and redressable by this Court or that the Schwarz or Cannizzaro exceptions apply in this case. | Emolument Clause ‘The Emolument Clause, Article 4, section 8, provides: No Senator or member of Assembly shall, during the term for which he shall have been elected, nor for one year thereafter be appointed to any civil office of profit under this State which shall have been created, or the emoluments of which shall have been increased Guring such term, except such office as may be filled by elections by the people. In determining the meaning of the Nevada Constitution, this Court must apply the “original public understanding” of its terms from the time period leading up to and after its approval. Legislature of State v. Settelmeyer, 137 Nev. 231, 234-35, 486 P.3d 1276, 1280 (2021). ‘The Emoluments Clause must be “strictly construed.” See, ¢.g., Gragg v. Dudley, 289 P. 254, 257 (Okla. 1930). Plaintiffs’ arguments that “emoluments” may include salary is convincing. But Settelmeyer’s argument that even if the term extends to salary as a general matter, the Emoluments Clause does not apply to below-inflation COLAs like the ones at issue here, is also convincing. As the Supreme Court of Utah explained in interpreting a nearly identical constitutional provision, a salary change that “does not enrich the office holder but merely keeps him approximately even with inflation” does not fall within the terms of the Page 3 of 87moe A 10 W 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Emoluments Clause. Jenkins v. Jenkins, 632 P.2d 858, 859 (Utah 1981). Even if a salary itself is an “molument,” the emoluments were not “increased” if the officeholder is kept even (or worse) with inflation. Shields v. Toronto, 395 P.2d 829, 831 (Utah 1964). That conclusion does not go beyond the plain text of the Emoluments Clause but is simply a construction of the terms “emoluments” and “increased.” This Court finds the Shields Court’s logic and analysis convincing. ‘The Emoluments Clause’s history shows that this case has nothing to do with the provision’s purpose. During the constitutional convention, the drafters explained that the purpose of extending the prohibition to one year after a legislator’s term was to prevent “the creation of offices which can be filled by those persons who themselves create them.” Andrew J. Marsh, Official Report of the Debates and Proceedings in the Constitutional Convention of the State of Nevada 141 (1866) (emphasis added) {hereinafter Constitutional Debates]. Plaintiffs cannot argue that Director Settelmeyer’s appointment violates that purpose — the Department director position was created decades before Director Settelmeyer served in the Legislature. See NRS 232.020. A COLA that is not directed to any particular office is also not within the Emolument Clause’s purpose. A legislator is not going to undertake a scheme to enact a marginal, across-the-board pay raise merely because he hopes to be appointed to a certain position later. See Constitutional Debates, supra, at 141. Summary judgment A plaintiff seeking affirmative summary judgment faces a “heavy burden.” Barnes v. Sea Haw. Rafting, LLC, 889 F.34 517, 538 (9th Cir. 2018); see also Wood v. Safeway, Inc., 121 Nev. 724, 731 (2005) (adopting the federal standard for summary judgment). He “must offer evidence sufficient to support a finding upon every element” of his claim, Barnes, 889 F.gd at 537. Summary judgment is proper only if he shows that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Nev. R. Civ. P. 56(a). “Reasonable doubts as to the existence of material factual issue[s] are resolved against the Page 4 of 87we cm ra ae 10 12 13 4 16 17 18 19 20 21 22 23 24 25 26 27 28 moving party] and inferences are drawn in the light most favorable to the non-moving party.” Barnes, 889 F.3d at 538 (some brackets in original). Plaintiffs have not shown that they are entitled to judgment as a matter of law. Writ of quo warranto and writ of mandamus This Courthas the power to issue writs of quo warranto, writs of mandamus, and all other| [writs proper and necessary to the complete exercise of their jurisdiction. Nev. Const. art. VI, § 6(1). Quo warranto is available to challenge an individual's right to hold office and to oust the {individual from the office if the individual’s claim to it is invalid. Heller v. Legislature of State of Nev., 120 Nev. 456, 463-64, 93 P.3d 746, 751 (2004); Lueck v. Teuton, 125 Nev. 674, 679, 219 P.3d 746, 898 (2004). Plaintiffs have not shown that Settelmeyer’s claim to to his office is invalid NRS 34.160 states that a writ of mandate “may be issued by ... a district court or a judge! of the district court, to compel the performance of an act which the law especially enjoins as a duty resulting from office, trust or station[.]” NRS 34.160. Nevada law specifically authorizes this Court to issue a writ of mandamus when no plain, speedy and adequate remedy exists in the ordinary course of the law. NRS 34.170. Plaintiffs have not shown they are entitled to a writ of mandate. To obtain injunctive relief, the moving party must demonstrate a “reasonable likelihood of success on the merits” and that the opposing “party's conduct, if allowed to continue, will cause irreparable harm for which compensatory relief is inadequate.” Boulder Oaks Cmty. Ass'n v.B&J Andrews Enterprises, LLC, 125 Nev. 397, 403, 215 P.34 27, 31 (2009). To prevail on an, action for declaratory relief: (1) there must be a justiciable controversy; (2) between parties with, adverse interests; (3) the party seeking relief must have a legally protectable interest; and (4) the issue is ripe for judicial determination. Kress v. Corey, 65 Nev. 1, 889 P.2d 352 (1948); Doe v. Bryan, 102 Nev. 523, 525, 728 P.2d 443, 444 (1986). Plaintiffs have not shown a “reasonable likelihood of success on the merits” and that the opposing “party’s conduct, if allowed to continue, will cause irreparable harm for which compensatory relief is inadequate. Page 5 of 67am oe ° a 10 nu 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSIONS OF LAW Standing is a jurisdictional limitation on this Court. Cotter ex rel. Reading Int'l, Inc. v. Kane, 136 Nev. 559, 564, 473 P.3d 451, 456 (2020) Plaintiffs have the burden to prove standing. Plaintiffs have not proved that they have suffered an injury-in-fact traceable to the challenged conduct and redressable by this Court. Plaintiffs have not proved that the exceptions to standing set out in Schwartz and Cannizzaro apply here. They are not challenging a legislative expenditure or appropriation as violating the Nevada Constitution. Their challenge is not based on the Separation of Powers Clause. Plaintiffs’ claims fail on the merits. ‘The Emoluments Clause must be strictly construed. Even if the Emolument’s Clause applies to salary as a general matter, the below- {inflation COLAs at issue here did not “increase” the emoluments of office. In the alternative, looking beyond the Emolument Clause’s plain text compels the conclusion that it does not bar Director Settelmeyer’s appointment. The Nevada Constitution's drafters did not intend for the Emoluments Clause to apply to across the board COLAs. Public policy and reason also weigh against Plaintiffs’ reading, ORDER THE COURT ORDERS: Plaintiffs’ motion for summary judgment is denied. Plaintiffs’ petition for writ of quo warranto is denied. Plaintiffs’ petition for writ of mandamus is denied. March ZY , 2023. 5 Sitar unc ~ Page 6 of 871 CERTIFICATE OF SERVICE 2 certify that I am an employee of the First Judicial District Court of Nevada; that on 3 ||the AD day of March 2023, I served a copy of this document by placing a true copy in an 4 |lenvelope addressed to: 5 BradleyS. Schrager, Esq. Kiel B. Ireland, Esq. Daniel Bravo, Esq. Office of the Attorney General 6 WOLF, RIFKIN, SHAPIRO, | 100 North Carson St. SCHULMAN & RABKIN, LLP _| Carson City NV 89701 7 3773 Howard Hughes Pkwy. Sie..590 South 8 Las Vegas, NV 89169 9 Scott R. Lake, Esq. THE CENTER FOR 10 BIOLOGICAL DIVERSITY PO Box 6205 11 Reno, NV 8951: 12 1g | tae envelope sealed and then deposited in the Court's central mailing basket in the court i clerk’s office for delivery to the USPS at 1111 South Roop Street, Carson City, Nevada, for mailing. 15 16 uw orn 18 fillie Shadron Judicial Assistant 19 20 21 22 23 24 25 26 27 28 Page 7 of 7TOLSE NHS0Se foo TOZ68 AN Au! uosse> 3S uosie) YLION OOT wooullvai [e1@uay Aawony aur jo 20 Teg ‘KANNOLLY “bs3 ‘puejaui-g €202 | & BWW GSAIS9au 10L68 ~PLADN' “KD UoSIeD LSOE WOO « ang sessNyY Ise Sg NOD LNALsid Tyiolanr sua oan Jondisid Ig WIN} “ae ‘NOSTL “a Sane