OCT 0 3 2013 

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129 Nev., Advance Opinion 72 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

NORTH LAKE TAHOE FIRE 

PROTECTION DISTRICT, 

Appellant, 

vs. 

WASHOE COUNTY BOARD OF 

COUNTY COMMISSIONERS; AND 

TAMMI DAVIS, WASHOE COUNTY 

TREASURER, 

Respondents. 

No. 60395 

FILED 

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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J. 

outside of our purview. Consequently, further judicial review is precluded 

by the political question doctrine. 1The district court's order denying 

extraordinary writ relief is affirmed. 

We concur: 

CaA 

Ho.kdesty 

Parraguirre 

J. 

'In light of the resolution of this appeal, we decline to reach the 

parties' remaining contentions. 

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