Last week the Clark County Commission approved that very controversial Jim Rhode’s Red Rock development “concept” plan. The commission was obligated to hear the master plan application after entering into a settlement agreement with Mr. Rhodes in April 2010. The county entered this agreement to avoid going to trial over a county ordinance designed to freeze zoning and prevent development of the land near the Red Rock National Conservation Area.
I sat and watched this hearing as what seemed like hundreds of people were there for 4-6 hours, several testifying against what they consider a crime against nature. What we heard was that the county really had no choice but to settle with Mr. Rhodes because they were going to lose in federal court anyway. At least they got some concessions from the agreement, right?
I thought I should clear the record on all of that. You may be surprised…I was. The public should be very aware that the county had a very strong legal case in defense of Rhodes’ lawsuit. A first year law student could tell you that. Entering into the settlement agreement was the choice of four of seven commissioners, at the urging of Chief Deputy District Attorney Rob Warhola.
While it has become clear to me that Clark County was standing on solid constitutional ground with regard to the Red Rock Overlay ordinance, Mr. Warhola was firmly convinced the county would lose and presented the settlement as nearly the only course of action for consideration.
While the state lost a court battle defending a law with the same language, they lost on the basis that the state legislature was acting outside it’s authority under the Nevada Constitution. However, the county’s ordinance wasn’t even challenged on those grounds.
Apart from those reasons, both the state law and county ordinance faced challenges related to the Fourteenth Amendment’s Equal Protection Clause. After Rhodes won the case against the state under the Nevada Constitution, he dropped his Fourteenth Amendment claims against the state. However, if he loses on appeal, those claims could be raised against the state again.
I spoke with Kevin Powers (legal counsel for the Nevada Legislature) and Bryan Stockton (Deputy Attorney General) who is handling the state’s case. Both felt confident that the Plaintiff would find it difficult to be successful with a challenge against the state law based on the Fourteenth Amendment equal protection claims. They both discussed the nature of what the courts call a rational basis scrutiny, which means the state simply needs to show it had a rational basis for the law. It can’t just be arbitrary, or for no good reason. When the court reviews an equal protection claim using this standard, it usually means the state is in a good position. While neither would comment on the county’s legal strategy, Mr. Powers did testify against the settlement agreement before the Clark County Commission in April 2010.
Brian Stockton cautioned that we can never be certain how courts will decide. Very true in any legal situation. Nonetheless, he was very confident in the state’s case against an equal protection claim. I have spoken with several attorneys and even a professor of constitutional law at Boyd Law School at UNLV. They all agreed that these Fourteenth Amendment claims were a long shot for the Plaintiff.
County Legal Strategy
I called up Rob Warhola, who acts as legal counsel for the county commission. I asked why he felt settlement was appropriate. He said there were several good reasons. First, the Plaintiff cited to case law where state or local government law was ruled unconstitutional under similar Fourteenth Amendment claims. The cases had enough similarities to the present case to make Mr. Warhola worry. If the case went to trial, Warhola would have to go through the effort of distinguishing those other cases from the present case.
He wasn’t very excited about the district court environment. He believed the judge was hostile, and juries are typically skeptical of government intervention on private lands. He was also concerned about pulling Dina Titus into court in the middle of her election campaign. The Plaintiffs were relying on statements, testimony and a letter written by Dina Titus to support their argument that the law and ordinance was passed for purposes unrelated to the acts themselves. Titus was a state senator in 2003 when the laws where passed.
Warhola believed that the county would lose at trial in federal district court. There was a risk that development might begin sooner, or that the master plan and rezoning would be in the hands of a hostile Judge Jones. It could have been two years before the Ninth Circuit would decide on appeal. It’s been a year and a half since the state raised their appeal, and a decision should be coming soon.
The District Attorney’s office decided it would be best to settle with Plaintiff to avoid additional risk. Warhola also argued that the state is taking their case on appeal and might win, so the county can play it safe and make a deal to hedge the bet.
Let’s be clear: Attorneys are supposed to apprise their clients as to the risks of going forward with litigation. There certainly were enough risks going forward to trial at the district court to consider settlement. Let me underline CONSIDER.
All that being said, when you look at the way Mr. Warhola presented his case to the County Commission, you have to pause for question as some already have. He zealously advocated for the commission to enter the settlement agreement like he was giving closing argument before a jury. Take a look at his testimony on video here starting about 01:41:00.
First, Rob Warhola stressed that the settlement agreement was on the agenda today ‘because the federal district court struck down Senate Bill 358, and we’re set to go to trial in just a few weeks on the county ordinance which contains the same language.’ He said ‘it is clear that the court will strike down our county ordinance because it contains the same language.’
This is where I take issue with Mr. Warhola. As I explained before, the state lost on two causes of action that weren’t raised against the county ordinance and which really had nothing to do with the county’s case. Therefore, Mr. Warhola’s argument that because the state lost, the county will too, is completely erroneous. This urges me to question exactly what he was thinking or doing here.
Not only does Rob Warhola oversell the county’s “untenable” legal position (erroneously in part), he also overstates the benefits of the proposed settlement agreement. He emphasizes that the county retains discretion to approve or deny ANY application for a zone change (see 01:44:30). But later, during the August 17, 2011 hearing, urges that the county cannot reject the application in “good faith.” Check it out:
Start out at 04:29. First listen to Rhodes’ attorney, Chris Kaempfer, describe how the county HAS TO allow a “reasonable” development density, which he says is 2.9 homes per acre (from the 1 for every two acres it currently is zoned for.) He goes on, ‘If staff recommends the major projects application, the county commission can’t simply deny it.’
So much for discretion! Why wasn’t this mentioned by Rob in the April meeting when he was giving his sales pitch for the settlement agreement?
Now go to 04:40 and watch how Mr. Warhola marches in lock step with Rhodes’ attorney. Ruh Roh, more promises of future discretion. ‘You have to approve this now, but later you’ll have discretion.’ Sound familiar? He essentially told the commissioners they HAD TO ACCEPT Gypsum’s concept plan that day. Granted, he is saying that there could be reasons discovered to reject the application at some later point. He said he needed something substantial. At this point, I’m wondering what exactly would be substantial to Mr. Warhola.
He should have been emphasizing the limitations of their “discretion” when they were considering the settlement agreement. What he should have told them in 2010 was that they had discretion under a standard that was nearly impossible to meet, or one Mr. Warhola will be hard pressed to find a justification for.
It just seems to me he was a little too anxious that the county accept that settlement agreement and he was unwilling to give them the full picture. Normally, attorneys have some duty to present their clients with options. It may have been useful for the county commissioners to know that they had a pretty solid case.
I’m not saying he didn’t have good points. He said in the April 2010 meeting that the settlement was reasonable. Sure it was. They secured private property areas inside the Red Rock National Conservation Area (RRNCA) from ever being developed. They got the access road eliminated from SR 159. Taking the settlement was certainly one strategy and maybe even a good one. Fine. So he should have emphasized those points. But you can’t go making erroneous arguments and leave out other vital considerations. He really should have emphasized the consequences and limitations of the agreement as well.
At the end of the day for me, if Rhodes gets his city on Blue Diamond Hill, what difference does it make that Rob Warhola secured a few small victories?
I had to spend hours digging this stuff up, trying to figure out what kind of case the county had. I feel like I’ve been mislead, and that but for the fact that I got a Pacer account and downloaded all these pleadings, called several attorneys and law professors, I would never have understood this issue with any level of competency. I have a feeling the commissioners were in no position to know the strength of the county’s case when they decided to settle with Rhodes because they were told otherwise by a guy with a law degree. All except Rory Reid (an accomplished attorney), who voted against the settlement.
The bottom line is that the county had a strong legal case. The case law cited by the plaintiff is easily distinguished from the present case. The county ordinance and state law had a rational basis to protect a valuable and vulnerable natural resource. Plaintiff’s argument that this is a pretext for some other purpose, evidenced by Dina Titus’s statements, makes no sense. Her statements spoke to the practical nature of how the property might be dealt with as a consequence of their act to protect the land by freezing zone changes.
The four commissioners who voted in favor of settling with Rhodes (Larry Brown, Tom Collins, Steve Sisolak and Susan Brager) were presented with what I objectively consider biased information. So based on Rob Warhola’s presentation, one could fairly claim they acted in good faith. Perhaps they knew at the time that if they signed that agreement, there was almost certainly going to be a development. I still would have liked to see them fight against it like Giunchigliani, Reid and Weekly did. Weighing the actual limitations of the agreement in the balance, it would have been better to go for it in court.
What I can report to the public is that the county had a very strong legal position against Jim Rhodes. While I’ve offered some possible rationales for settling, which certainly were worth considering, county’s legal counsel presented the settlement agreement as if it were the only option. When taking legal advice from Robert Warhola in the future, the county should probably take all of this into consideration, even if he is “the one with the law degree.” Crying wolf has consequences.
As a matter of fact, they might want to get a second opinion when determining what “good faith” is, or what reasons they can reject Mr. Rhodes application for. Just a thought.
Coming Up Next
This fight is far from over. The state’s case is being reviewed by the Ninth Circuit, and we are likely to see a decision relatively soon, which may render this whole thing moot.
If the state has no luck, there are several other scenarios that halt Rhodes’ project. They still need to get federal land use to build that single access road for the 25,000 people who might eventually live there. Can you imagine? What a nightmare.
The first week of September, the commission will be reviewing whether or not to endorse Rhodes’ federal land swap and send a letter to the BLM to that effect. Opponents will need to convince Brown, Brager, Scow, Sisolak and Collins not to go for it. If Rhodes can’t get that federal land use, he can’t have his road. No project. I’m guessing Weekly and Giunchigliani are already there. Stay tuned!
Judge Robert Clive Jones, appointed by George W. Bush. BYU undergrad, UCLA law school. He also clerked for Judge Clifford Wallace on the Ninth Circuit Court. Incidentally, Judge Wallace actually dissented in one of those Fourteenth Amendment cases cited by the Plaintiff. Neither here nor there. However, Judge Jones’ anti-government preferences are apparent, and go much further than his conservative predecessors who have typically been much more deferential. It appears Judge Jones doesn’t value the environment, rather he values money and corporations, strong bias in his decision making. Another good reason to vote for presidents of the United States who will make the right choices when it comes to our federal judiciary.
Justin is the publisher The Nevada View, which has earned the recognition in the Washington Post’s “Best State-Based Political Blogs,” as well as being awarded the “Most Valuable Blogger Award” by the local CBS affiliate in 2011. Follow him on Twitter @McAffee