                                                  129 Nev., Advance Opinion 72
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                NORTH LAKE TAHOE FIRE                                       No. 60395
                PROTECTION DISTRICT,
                Appellant,
                vs.
                WASHOE COUNTY BOARD OF
                                                                            FILED
                COUNTY COMMISSIONERS; AND                                    OCT 0 3 2013
                TAMMI DAVIS, WASHOE COUNTY                          )1v .


                TREASURER,                                                     •     .+ 114'''T
                                                                                       7

                Respondents.



                           Appeal from a district court order denying a petition for a writ
                of mandamus seeking payment under NRS Chapter 474. Second Judicial
                District Court, Washoe County; Patrick Flanagan, Judge.
                           Affirmed.


                Reese Kintz, LLC, and Devon T. Reese, D. Geno Menchetti, and Ryan W.
                Herrick, Incline Village,
                for Appellant.

                Richard A. Gammick, District Attorney, and David C. Creekman, Chief
                Deputy District Attorney, Washoe County,
                for Respondents.



                BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

                                                OPINION


                By the Court, CHERRY, J.:
                           This case arises out of actions taken by respondents Washoe
                County Board of County Commissioners and Washoe County Treasurer
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                Tammi Davis to provide refunds to Incline Village and Crystal Bay
                property owners who paid excessive property taxes as a result of improper
                appraisals. To cover the cost of the refunds plus interest, respondents
                withheld amounts from property tax distributions made to the various
                county taxing units that had previously benefited from the excessive
                property taxes, essentially offsetting the refunded amounts against the
                distributions. Those taxing units from which distribution amounts were
                withheld include appellant North Lake Tahoe Fire Protection District
                (FPD), which petitioned the district court for a writ of mandamus
                compelling respondents to cease withholding portions of the distributions.
                            The district court denied relief, and on appeal, we are asked to
                consider the propriety of these withholdings under our current statutory
                scheme. We must also consider whether judicial interference in this
                matter is precluded by the political question doctrine. To assist with this
                latter assessment, we take this opportunity to adopt the factors set forth
                in Baker v. Carr, 369 U.S. 186, 217 (1962). In applying these factors, we
                conclude that because respondents were within their authority to withhold
                distributions, and because the manner in which they did so was
                discretionary, the political question doctrine precludes judicial review. We
                thus conclude that the district court properly denied writ relief.
                                  FACTS AND PROCEDURAL HISTORY
                            FPD provides all emergency and nonemergency fire services,
                along with emergency medical services, to the Incline Village/Crystal Bay
                area. It was formed under NRS Chapter 474 (County Fire Protection
                Districts) and is funded pursuant to the requirements set forth in NRS
                474.190. Like other taxing units, including Washoe County, the Washoe
                County School District, the State of Nevada, the Incline Village General

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                Improvement District, and the supplemental city/county relief tax account,
                FPD obtains funding from property tax distributions. Slightly more than
                half of FPD's budget is made up of its bimonthly distributions of the real
                property taxes.
                            Pursuant to our decision in Berrum v. Otto, 127 Nev. „
                255 P.3d 1269, 1274-75 (2011), in which we held that the Washoe County
                Treasurer had a duty under NRS 360.2935 to refund, with interest,
                unconstitutionally imposed and collected property taxes in Incline Village
                and Crystal Bay, the County Commissioners considered various ways in
                which the refund and interest payment could be funded. The County
                Commissioners ultimately decided to pay for the refund and interest by
                reducing future property tax distributions proportionately among the
                various taxing units. Thus, in August 2011, the County Commissioners
                directed Treasurer Davis to make the refunds and interest payments and
                to withhold corresponding proportionate amounts from the county taxing
                units' property tax distributions over the next 18 months. Doing so
                reduced FPD's property tax distribution significantly.
                            Consequently, FPD filed a petition for a writ of mandamus
                with the district court, seeking to prevent respondents from continuing to
                withhold any portion of FPD's tax revenues. After a hearing, the district
                court determined that writ relief was not appropriate. The district court
                determined that, to address FPD's concerns, it would have to interject
                itself into the internal political decisions of another branch of government,
                which it could not do. The court further pointed out that a writ may not
                be used to prescribe the manner in which political officers should exercise
                discretion unless the officers' actions are arbitrary and capricious, which



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                was not the case here. Thus, the district court denied the application for
                writ relief. FPD subsequently appealed.
                            On appeal, FPD argues that the writ of mandamus exists to
                allow a court to compel compliance with a statutory mandate such as that
                contained in NRS 474.200. NRS 34.160. FPD points out that NRS
                474.200 is not discretionary—it requires respondents to collect and then
                distribute a portion of the real property taxes to FPD. FPD thus argues
                that the district court erred in refusing to issue a writ of mandamus to
                compel the County Commissioners and Treasurer to distribute the full
                amount due based on the current year's property tax base. FPD further
                contends that the district court's reliance on separation-of-powers-based
                justiciability requirements was misplaced, as issuing a writ would not
                intrude on respondents' decision-making authority. In so arguing, FPD
                challenges the withholding of monetary distributions to fund the tax
                refunds. Respondents, on the other hand, assert that the issue presented
                here is completely nonjusticiable and, thus, the district court properly
                denied FPD's requested writ relief.

                                              DISCUSSION
                            The political question doctrine stems from the separation of
                powers essential to the American system of government. Nevada's
                separation of powers doctrine, contained in Article 3, Section 1 of the
                Nevada Constitution, provides that "no persons charged with the exercise
                of powers properly belonging to [another branch] shall exercise any
                functions, appertaining to either of the others." This doctrine exists for
                one very important reason—"to prevent one branch of government from
                encroaching on the powers of another branch."       Comm'n on Ethics v.
                Hardy, 125 Nev. 285, 292, 212 P.3d 1098, 1103 (2009). Recently, we
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                stated that "[t]his separation is fundamentally necessary because `[w]ere
                the power of judging joined with the legislative, the life and liberty of the
                subject would be exposed to arbitrary control, for the judge would be the
                legislator: Were it joined to the executive power the judge might behave
                with all the violence of an oppressor.' Berkson v. LePome, 126 Nev. ,
                   , 245 P.3d 560, 565 (2010) (second alteration in original) (quoting
                Galloway v. Truesdell, 83 Nev. 13, 19, 422 P.2d 237, 242 (1967)). "The
                division of powers is probably the most important single principle of
                government declaring and guaranteeing the liberties of the people."
                Galloway, 83 Nev. at 18, 422 P.2d at 241.
                            The Nevada Constitution specifically delineates the power
                belonging to each branch of government in this state. Berkson, 126 Nev.
                at , 245 P.3d at 564. The Legislature enacts laws, and in turn, the
                executive branch is tasked with "carrying out and enforcing th[ose] laws."
                Galloway, 83 Nev. at 20, 422 P.2d at 242 ("The executive power extends to
                the carrying out and enforcing the laws enacted by the Legislature."); 16
                C.J.S. Constitutional Law § 354 (2005) ("The adoption of administrative
                regulations necessary to implement and carry out the purpose of
                legislative enactments is executive in nature"); see Nev. Const. art. 4
                (providing the Legislature with the ability to enact laws); Nev. Const. art.
                5, § 7 ("[The Governor] shall see that the laws are faithfully executed.").
                On the other hand, "Judicial Power" is the authority to hear and
                determine justiciable controversies,' State v. Second Judicial Dist. Court,
                116 Nev. 953, 962, 11 P.3d 1209, 1214 (2000) (quoting Galloway, 83 Nev.
                at 20, 422 P.2d at 242), "No declare what the law is[,] or has been."
                Berkson, 126 Nev. at , 245 P.3d at 565 (first alteration in original)



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                (quoting 1 Thomas M. Cooley, Constitutional Limitations 191 (8th ed.
                1927)).
                            "In general, the Judiciary has a responsibility to decide cases
                properly before it, even those it 'would gladly avoid."    Zivotofsky ex rel.
                Zivotofsky v. Clinton,   566 U.S. „ 132 S. Ct. 1421, 1427 (2012)
                (quoting Cohens v. Virginia, 19 U.S. 264, 404 (1821)). The political
                question doctrine, however, provides for a narrow exception limiting
                justiciability. See Zivotofsky, 566 U.S. at , 132 S. Ct. at 1427; Pershing
                Cnty. v. Sixth Judicial Dist. Court, 43 Nev. 78, 89, 183 P. 314, 315 (1919).
                Under the political question doctrine, controversies are precluded from
                judicial review when they "revolve around policy choices and value
                determinations constitutionally committed for resolution to the legislative
                and executive branches." 16A Am. Jur. 2d Constitutional Law § 268
                (2013); see generally Hardy, 125 Nev. at 296, 212 P.3d at 1106; Caine v.
                Robbins, 61 Nev. 416, 424, 131 P.2d 516, 519 (1942); Pershing Cnty., 43
                Nev. at 89, 183 P. at 315.
                            More specifically, the United States Supreme Court has
                identified certain features that characterize a case as being nonjusticiable
                under the political question doctrine:
                            "a    textually   demonstrable      constitutional
                            commitment of the issue to a coordinate political
                            department; or a lack of judicially discoverable
                            and manageable standards for resolving it; or
                            the impossibility of deciding without an
                            initial policy determination of a kind clearly
                            for nonjudicial discretion; or the impossibility
                            of a court's undertaking independent
                            resolution without expressing lack of the
                            respect due coordinate branches of government;
                            or an unusual need for unquestioning
                            adherence to a political decision already made;
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                            or the potentiality of embarrassment from
                            multifarious   pronouncements  by various
                            departments on one question."
                United States v. Munoz-Flores, 495 U.S. 385, 389-90 (1990) (quoting Baker
                v. Carr, 369 U.S. 186, 217 (1962)). A determination that any one of these
                factors has been met necessitates dismissal based on the political question
                doctrine. See id. To clarify and expand our limited jurisprudence in this
                area, we take this opportunity to adopt the Baker factors to assist in our
                review of the justiciability of controversies that potentially involve
                political questions. With these factors in mind, we examine FPD's
                arguments concerning NRS 474.200 and the County Commissioner's and
                Treasurer's withholding decisions.
                NRS 474.200
                            FPD argues that the political question doctrine does not apply
                here because NRS 474.200 contains a clear funding mandate, and
                mandamus is available to compel governmental compliance with a clear
                statutory mandate. As noted, once the Legislature has made policy and
                value choices by enacting statutory law, that law's construction and
                application is the job of the judiciary. Moreover, a writ of mandamus may
                indeed be available "to compel the performance of an act that the law
                requires as a duty resulting from an office, trust, or station."   Int'l Game
                Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556,
                558 (2008); see NRS 34.160. Thus, if a clear statutory directive found in
                NRS 474.200 were being violated, the political question doctrine would not
                prevent court review. But we do not read NRS 474.200 to require a full
                distribution to FPD of all taxes received regardless of previous
                overpayments.


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                            NRS 474.200 provides, in relevant part, that
                                  1. At the time of making the levy of county
                            taxes for that year, the boards of county
                            commissioners shall levy the tax established
                            pursuant to NRS 474.190 upon all property, both
                            real and personal, subject to taxation within the
                            boundaries of the district. . . .
                                 2. When levied, the tax must be entered
                            upon the assessment rolls and collected in the
                            same manner as state and county taxes. . . .
                                   3. When the tax is collected, it must be
                            placed in the treasury of the county in which the
                            greater portion of the county fire protection district
                            is located, to the credit of the district.
                (Emphasis added.) Thus, pursuant to this statute, the taxes collected on
                behalf of a fire district must be credited to the fire district's funds. MRS
                474.200(3). Plainly, funding FPD through its portion of the collected taxes
                is not discretionary. Wheble v. Eighth Judicial Dist. Court, 128 Nev. ,
                    272 P.3d 134, 136 (2012) (explaining that in our de novo review of a
                statute, we will not look beyond the plain language when it is clear on its
                face). However, this statute does not contemplate or provide guidance
                when a refund is due of overpaid, unconstitutionally collected taxes. And
                while not directly on point, NRS 354.240 allows for the withholding of
                distribution credit from county taxing units for the purpose of issuing tax
                refunds necessitated by overpayments. Under NRS 354.220-.250, an
                applicant may request a refund from the County Commissioners or the
                Treasurer where "the applicant for refund has a just cause for making the
                application and the granting of the refund would be equitable." NRS
                354.220(4). Once NRS 354.220 has been implicated, "[t]he county may
                withhold amounts refunded from its subsequent apportionments of


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revenues from property tax to the other taxing units in the county." NRS
354.240(2). Accordingly, we conclude that nothing in NRS 474.200
precludes the withholding method followed by the County Commissioners
and Treasurer here.
            Nevertheless, FPD further contends that Golconda Fire Prot.
Dist. v. Cnty. of Humboldt, 112 Nev. 770, 774, 918 P.2d 710, 712 (1996), is
instructive, because in that case, we determined that taxes collected for
fire districts must be deposited into a county treasury and used only for
fire protection purposes. Golconda dealt with the assertion that Humboldt
County wrongfully credited the interest earned on taxes that it collected
for the fire protection district to the county's general fund. 112 Nev. at
771, 918 P.2d at 710. The district court determined that Humboldt
County's actions were discretionary and thus immune from challenge.       Id.
We determined that because "NRS 355.170 did not confer authority to
Humboldt County with respect to the apportionment of [the fire protection
district]'s tax proceeds and the interest earned thereon," and "NRS
355.175 does not convey any authority to counties for the investment of
government funds," Humboldt County did not retain discretion over the
interest due to the fire protection district. Id. at 773, 918 P.2d at 711-12.
We determined that NRS 474.200 creates a constructive trust that places
"fiduciary duties on Humboldt County to administer the taxes collected on
behalf of [the fire protection district]."   Id. at 774, 918 P.2d at 712.
Accordingly, we reversed the dismissal order and remanded for an
accounting of the tax funds. Id at 775, 918 P.2d at 713.
            Golconda is distinguishable from this case because it concerns
unauthorized apportionment and improper use of interest legitimately
owed to a fire protection district. While Golconda .states that "taxes
                collected by fire districts must be deposited into a county treasury and
                used only for fire protection purposes," it does not state that improperly
                collected taxes may not be recovered at a later time.   Id. at 774, 918 P.2d
                at 712. Nor is there any argument here that the withholdings were
                improperly apportioned among the various taxing entities. Moreover,
                Golconda is consistent with the County Commissioners' decision to
                reclaim the unconstitutionally collected tax distributions. In stating that
                NRS 474.200 creates a constructive trust that places fiduciary duties on
                the County to "administer" the taxes collected on behalf of FPD, we
                acknowledged the County's need to manage the tax distributions.
                Golconda, 112 Nev. at 774, 918 P.2d at 712. Thus, the County
                Commissioners did not violate NRS 474.200 or act outside of their
                authority here.
                The withholding decision
                               County commissioners have the power to budget, spend, and
                levy and collect property taxes, NRS 244.150; MRS 244.1505; NRS
                244.200-.255, and to "do and perform all such other acts and things as may
                be lawful and strictly necessary to the full discharge of the powers and
                jurisdiction conferred on the board." NRS 244.195. In this, county
                commissioners perform various functions of executive dimension.          See
                Queen Anne's Conservation, Inc. v. Cnty. Comm'rs of Queen Anne's Cnty.,
                855 A.2d 325, 335 (Md. 2004); Pa. State Ass'n of Jury Comm'rs v.
                Commonwealth, 64 A.3d 611, 615 n.8 (Pa. 2013); see also Ball v.
                Fitzpatrick,    602 So. 2d 873, 878 (Miss. 1992) (citing numerous
                jurisdictions and explaining that "official functions of local governments
                frequently overlap and local governments may perform executive,
                legislative, and judicial functions"). The executive power also includes the

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                general power to, among other things, administer appropriated funds, so
                long as doing so does not conflict with legislative purpose. 16 C.J.S.
                Constitutional Law § 354 (2005). Particularly, as noted in Golconda, while
                the amounts collected on FPD's behalf belong to FPD, it is the County's
                duty to administer those collected taxes. Id. at 774, 918 P.2d at 712.
                            Here, under the basic powers set forth above and NRS
                354.240, the County Commissioners had administrative authority to
                withhold distributions from the taxing entities and, within that authority,
                to decide the precise manner in which to furnish the tax refunds. NRS
                474.200 does not govern or impact the refund process, and FPD has
                pointed to no other authority compelling a different manner of funding.
                The second Baker factor reasons that a court should relinquish a case for
                nonjusticiability if there is "a lack of judicially discoverable and
                manageable standards for resolving' the issue. Munoz-Flores, 495 U.S. at
                389 (quoting Baker, 369 U.S. at 217). And the third Baker factor limits
                justiciability if it is impossible to decide the issue "without an initial
                policy determination of a kind clearly for nonjudicial discretion.'      Id.
                (quoting Baker, 369 U.S. at 217). Aside from NRS 354.240, there appears
                to be no standard or rule for the courts to follow governing how the County
                Commissioners must handle tax refund liability. Thus, it is up to the
                County Commissioners to determine how to satisfy the refund and
                corresponding budgeting obligations, so long as their determination does
                not conflict with a legislative purpose. FPD points to no conflict, and we
                thus decline to interject ourselves into the administration of the tax
                distribution and refund process.     See Montano v. Cnty. Legislature of
                Suffolk, 891 N.Y.S.2d 82, 89 (App. Div. 2009) ("In the absence of any
                allegation that constitutional rights have been violated, or that a

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                governmental body's action contravenes an applicable statute, law or
                ordinance, a legislature's governance of its internal affairs . . . should not
                be subject to court oversight." (internal quotations omitted)). Once it is
                concluded that the County Commissioners had authority to withhold the
                disbursements in this case, the precise manner in which they do so must
                be decided based on policy and economics. "Courts exist solely to declare
                and enforce the law, and are without authority as to matters of mere
                governmental policy." State ex rel. Meshel v. Keip, 423 N.E.2d 60, 70-71
                (Ohio 1981) (Brown, J., dissenting) (emphasis omitted) (quoting Grogan v.
                DeSapio, 83 A.2d 809, at 611-12 (N.J. Super. Ct. Law Div. 1951)); see
                generally Fletcher v. Commonwealth, 163 S.W.3d 852, 860 (Ky. 2005)
                ("[T]he judicial department should neither inject itself nor be injected into
                the details of the executive department budget process.").
                            In sum, if the court system undertook resolution of this case, it
                would supplant the County Commissioners' legislative and executive
                powers. The "lack of judicially discoverable and manageable standards'
                and "the impossibility of deciding [this case] without an initial policy
                determination of a kind clearly for nonjudicial discretion' remove this
                case from our judicial purview. Munoz-Flores, 495 U.S. at 389 (quoting
                Baker, 369 U.S. at 217). Accordingly, the district court correctly concluded
                that FPD's petition presented a nonjusticiable political question.
                                               CONCLUSION
                            We conclude that the County Commissioners' decision to
                withhold collected property taxes from FPD was within its authority in
                general, and that the precise manner in which it undertook that task is




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                outside of our purview. Consequently, further judicial review is precluded
                by the political question doctrine. 1 The district court's order denying
                extraordinary writ relief is affirmed.




                                                                                 J.




                We concur:




                     CaA                         J.
                Ho.kdesty




                Parraguirre




                      'In light of the resolution of this appeal, we decline to reach the
                parties' remaining contentions.


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