What remedies are available assuming one or more members of the public allege that a general improvement district (“GID”) is exceeding its limited powers¹? That’s what the term ultra vires means. Latin for “beyond the powers.” The answer to the question posed appears at NRS 43.100(1) which instructs that:

“The governing body²…(of a)…municipality³…may file or cause to be filed a petition…in the district court in and for any county in which (it)…is located, or any act or project is (to be) undertaken, wholly or in part, praying (for) a judicial examination and determination of the validity of any power conferred or of any instrument, act or project of the municipality⁴, whether or not such power has been exercised, such instrument has been executed or otherwise made or such act or project has been taken.”

Does any reader really think that a Board will file such a petition to resolve the question of the validity of the exercise of power disputed by one or more members of the public? If so, we have some bridges in Incline Village you might be interested in purchasing.

But what happens if the IVGID Board refuses to file such a petition, notwithstanding the District is alleged to be exercising ultra vires acts? What remedies are available to the public?

Please don’t tell us the Sheriff, or the District Attorney, or the Attorney General, or Washoe County, or the Department of Taxation, or the Governor, etc. History has demonstrated over and over again that no one will do anything. And why is this? Because they regurgitate the propaganda spewed below for decades by former staff and Board members:

Since IVGID “is a legally separate government,” it is: “fiscally independent of…(and) not financially accountable (to) any other…governmental…entity.”⁵ And therefore, it is “empowered to determine what facilities and services it should offer that will preserve or enhance the general health, safety and welfare of the (Incline Village/Crystal Bay) community.”⁶

Okay. So surely a local resident can challenge the validity of the powers the District exercises. Right? Isn’t that the right all residents have under the Federal⁷ and State⁸ Constitutions? Well if you answer “yes,” you’d be wrong!

In Katz v. The Incline Village General Improvement District, Washoe County Second Judicial District Court, Case No. CV11-01380, that’s exactly what resident Katz attempted to accomplish. Yet listen to what deceased Judge Patrick Flanagan ordered on August 22, 2012:

“This Court has reviewed the statutory scheme of NRS Chapter 318 and finds that, aside from containing no express private remedy for citizens like Katz, it militates against any implication of a private remedy…As a consequence Katz’s (various)…Causes of Action, even when this Court views the facts (alleged) in the light most favorable to him, must be denied on the pleadings⁹ because they fail to state a cause of action upon which relief can be granted. (Thus) the declaratory relief Katz requests¹⁰ is simply unavailable under NRS Chapter 318.”

So there you have it. No resident has any standing to challenge in any court in this State the validity of any act IVGID exercises¹¹!

So what remedies then, if any, remain, for one to determine the validity of any of the powers IVGID exercises pursuant to NRS 318? According to Judge Flanagan, disingenuous political remedies such as,

“For example, NRS 318.095 provides for elections of the GID’s board’s members. Like other public officials, if IVGID’s board members are acting improperly, they can be unelected¹². Further, NRS 318.0955 provides that members of the board are subject to recall¹³…Moreover, a recall issue can be bypassed in more extreme and urgent cases by filing a…NRS 318.080(6)…petition…In such a case, the board of county commissioners may step in and remove…elected trustees¹⁴…These provisions clearly demonstrate NRS 318 does not provide, or even imply, a private right of action for citizens like Katz seeking to enforce its provisions.”

Does any reader really think that a sufficient number of qualified electors¹⁵ would ever go through the time, effort and expense of recalling a duly elected trustee after he/she has been in office for a minimum of six (6) months, just because they challenge the validity of a power the trustee has exercised? Does any reader really think the Washoe County Board of Commissioners would ever interfere with a common constituents’¹⁶ previous election of an IVGID trustee? If so, we have some bridges in Incline Village you might be interested in purchasing. And if not, you see there really are no remedies!

And now you know!

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1. Remember that as elsewhere discussed, GIDs are limited purpose special districts along the lines of vector control (mosquitos), library, fire, water, sewer and cemetery districts.
2. As opposed to one or two of its members.
3. For purposes of NRS 43.100, et seq., GIDs are municipalities as the term “means…any…general improvement district” (see NRS 43.080)].
4. GIDs are “municipalities” for purposes of
5. See ¶1(A) at page 35 of IVGID’s 2019 Comprehensive Annual Financial Report (“the 2019 CAFR”).
6. See https://www.yourtahoeplace.com/ivgid/about-ivgid.
7. The First Amendment to the U.S. Constitution guarantees, in part, that “Congress shall make no law…abridging…the right of the people…to petition the Government for a redress of grievances” such as “signing petitions, filing lawsuits, or lobbying officials—without fear of retaliation” (see the ACLU of Arizona’s discussion of the First Amendment). And ¶1 of the Fourteenth Amendment passes through this guaranty to the acts of State and local governments by declaring that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
8. Article 1, ¶10 of the Nevada Constitution guarantees that “the people shall have the right freely to…to petition the Legislature for redress of Grievances.”
9. According to Judge Flanagan in his ruling, “motions for judgment on the pleadings and motions to dismiss are substantially identical.”
10. Well it’s unavailable under NRS 30, the Uniform Declaratory (Relief) Judgments Act, as well!
11. This decision resulted in two appellate decisions. The first was represented by Docket No. 70440 (Decided February 26, 2018) where the Nevada Supreme Court affirmed the District Court’s dismissal of Katz’s challenges. And it can be viewed at https://caselaw.findlaw.com/court/nv-supreme-court/1921432.html.
12. Such elections take place biennially, and possibly, each fourth year thereafter [see NRS 318.095(3)].
13. The recall of public officers is regulated by NRS 306. For starters, a recall petition cannot be filed or circulated against a board trustee until he/she has held office for at least six (6) months (see Article 2, ¶9 of the Nevada Constitution). Before a recall election can take place, a recall petition must be signed by at least 25% of the voters who “actually” voted in the election when the officer(s) subject to recall won their seats (see Article 2, ¶9 of the Nevada Constitution). Before a recall petition can be circulated for signature, a notice of intent must be filed with the officer with whom the public officer filed his or her declaration of candidacy [see NRS 306.015(1)]. On or before the 48th day after the date on which a notice of intent is filed, all signatures collected on the petition during the period beginning on the date on which the notice of intent was filed and ending on the 45th day after the date on which the notice of intent was filed, must be submitted to the filing officer [see NRS 306.015(3)(a)]. On or before the 90th day after the date on which the notice of intent was filed, all signatures that were collected on the petition during the period beginning on the 46th day after the date on which the notice of intent was filed and ending on the date of submission of the petition to the filing officer for signature verification pursuant to this paragraph. The circulation of the petition must cease on the date of submission of the petition to the filing officer for signature verification pursuant to this paragraph or on the 90th day after the date on which the notice of intent was filed, whichever occurs first [see NRS 306.015(3)(b)]. The persons filing the notice of intent must deposit in advance the estimated costs of signature verification, including, without limitation, the estimated costs for the Secretary of State and the county clerk of each county from which signatures on the petition are gathered [see NRS 306.016(1)(a)]. Following signature verification, the filing officer will then issue a call for a special election in the jurisdiction represented by the officeholder being recalled between 10 and 20 days after the Secretary of State has given notification that the petition is sufficient. The special election must then be held within 30 days after the filing officer issues this call [see see NRS 306.040(4)].
14. After “petition, hearing and notice thereof by publication and by mail addressed to the trustee.”
15. To give the reader an idea of how many qualified elector signatures we’re talking about, for the 2023 recall of former trustees Sara Schmitz and Matthew Dent recall supporters needed to collect 1,801 signatures per office holder within 45 days (see Ballotpedia).
16. Since Incline Village/Crystal Bay are located within an unincorporated portion of Washoe County, Incline Village residents are Washoe County residents. Thus making them constituents of Washoe County Board mebers.