As the president of Strategic Solutions, a consulting firm in Las Vegas, Terry Murphy works with businesses, governments, and political candidates. She has worked with and for various state government agencies. Murphy organized Nevadans for the Protection of Property Rights, the lead plaintiff in Nevadans for the Protection of Property Rights v. Heller.

[Editor’s note: This interview took place before the Nevada Supreme Court’s ruling in Nevadans for the Protection of Property Rights v. Heller, which removed the regulatory-takings provisions and some eminent-domain provisions from the ballot initiative.]

[Editor’s note: A reference in the original transcript to Laura FitzSimmons, an eminent domain attorney in Nevada, was deleted on June 6, 2007, after she contacted the Center to point out that she “had no involvement with the initiative and did not contribute one dime to its passage.”]

Last week there was a challenge in the Supreme Court. As I understand it, they accepted briefs but didn’t do oral arguments — is that correct?

No, they did oral arguments.

And how did that go?

I think it went very, very well. I was not there, but from what I heard and read, Mr. Waters when presenting his case — one of our arguments was that the state of Nevada has a single-subject rule, that a constitutional amendment be only one subject — said in his argument, “Yes, this is Kelo [v. City of New London] plus.” So it’s more than just the one subject. So I think it went very well. We’ve got our fingers crossed.

The reason the Superior Court rejected it was a ripeness question?

No, I think that they rejected it because they felt that because they had so many signatures, the people should have the right to decide it. I think it was a political decision.

When do you think the Nevada Supreme Court will announce its decision?

Well, the sample ballots have to be printed, I believe, by September 28, and so they’ll have to decide a little bit in advance of that.

Can you give me an overview as to why the coalition you represent is opposing it and what you think are the ramifications and consequences?

The Coalition is very, very broad-based, and I think many of them have different reasons for opposing it. The Sierra Club is opposing it as well as the Nature Conservancy. I’m sure that their reason would be for the protection of environmental treasures. There are also some neighborhood groups that are with us. Section 8 of this particular amendment states that any government action that causes substantial economic harm — by the way, substantial economic harm is not defined . . . to me $20 is substantial, so we don’t know what that is — is compensable. So a lot of our local town advisory boards that look at zoning matters in an advisory capacity for neighborhoods are saying: “Well, if a developer comes in and wants to put a high-rise in the middle of a neighborhood and we turn them down, then that’s a government action and they’d then have the right to sue for damages. If we go ahead and allow it, the neighbors have the right to sue for damages.” So you basically put a halt to any kind of comprehensive land-use planning and zoning, which could wreak havoc not only on the community, for what [development] goes in where, but also on the government’s coffers. And the taxpayers have to pay that money. I understand that up in Oregon there have been $4 billion in claims filed since this took effect.

We’re already strapped here for revenue, as are local governments across the country for infrastructure and so forth.

Some of the other groups — for example, Southern Nevada Home Builders Association and contractors associations, there are several of them — their concern would be state and county and municipalities’ ability to provide infrastructure. We already have more than $4 billion of unfunded road projects that will only get more expensive. One of the provisions says that if you acquire property from a property owner for public use and you don’t use it within five years, you have to give it back. Well, we are in the final stages of completing the Las Vegas Beltway, which has been in the planning stages since about 1987. The acquisition of rights of way has been taking quite some time, and some of the land required for that hasn’t been used yet, but it will be, so those sort of artificial deadlines on public works project are extremely detrimental. Our lifeblood in Southern Nevada is the [Interstate 15] corridor, coming in from Southern California and Utah in the opposite direction. If we cannot complete road improvements on that freeway system, we’re going to have a very difficult time keeping our economy.

Also, the regional transportation commission here is in receipt of a letter from the Federal Highway Administration that says that if we have to abide by this constitutional amendment, we will be in jeopardy of losing federal dollars because of the way it requires compensation of the land for public-works projects.

The other matter with regard to Section 8 and “any governmental action” is that there’s a case right now where there’s a sex club operating in the middle of a neighborhood. Well, the neighbors aren’t very happy with that. And my understanding — and the district attorney’s understanding — of this amendment is that if a government action were to be taken in the form of a business license going in and shutting down the sex club because it’s an illegal use in a residential neighborhood, then that operator could sue for damages for loss of income. And if we don’t take the action, by not taking the action then the neighbors could sue. So it just opens up a huge can of worms. It’s basically the Lawyers Full Employment Act, as far as I’m concerned. Because the other thing is that it creates a separate class of litigants. The court costs are also to be paid by taxpayers, so the litigants have absolutely nothing to lose.

Does the Nevada language have a waiver option, so that the restrictions could be waived on a case-by-case basis? I know several states do.

No, I do not recall there being one.

So basically speaking, there’s no choice but to compensate?

That’s right: “Owner shall receive just compensation.”

Basically what you’re saying is that this actually is going to require compensation whether there is an action taken or not.

Well, yeah, whether a legal action is taken or not. It says a property owner must be compensated.

So inaction might be interpreted as an action?

Sure. It’s so broadly written.

Could you tell me a little bit about the players in Nevada? I understand Kermitt Waters is an eminent-domain attorney and Don Chairez is a former judge who’s running for attorney general. [From] where do they come to this?

Well, I don’t know where Mr. Chairez comes from and I have never met Mr. Waters, but based on my knowledge of his practice — gosh, if it passes I’d want to be them. Because they’ll be hired by pretty much everybody, I’d imagine, and taxpayers are going to have to pay. I am not sure what the motivations are for the entire proposal — I haven’t spoken to them — other than they say that there are cases of people being treated unfairly. Well, that may well be, [but] I haven’t seen it. There have been very few cases in Nevada where property has been taken for private development. And Clark County is very much opposed to that; in fact, they’re passing some ordinances in the coming weeks that will prevent the county from taking land for redevelopment.

That’s Commissioner [Bruce] Woodbury’s proposal?

Correct. Woodbury and [Commissioner Chip] Maxfield.

This deals with both eminent domain and regulatory takings. Commissioner Woodbury said that he agreed with the eminent-domain portion but felt that the inclusion of the regulatory-takings part was a substantial portion. I think he suggested that it’s a bait-and-switch.

That’s exactly right — that and also the manner in which compensation is determined, the different class of litigants. Everything except the Kelo decision — it’s pretty substantial.

The separate class of litigants is a violation of the due process clause?

You know, I have heard that. I am not an attorney, so I couldn’t really intelligently comment on that.

What is your sense of the role, as I understand it, of the $287,000 raised so far by the People’s Initiative to Stop the Taking of Our Land group? Something in the vicinity of 58 percent of it has come from Americans for Limited Government — that’s the organization out of Illinois headed up by Howard Rich.

Right. And they are also funding another initiative here in Southern Nevada called TASC, the Tax and Spending Control Initiative, which is equally horrible.

Is your coalition opposed to that, too?

Most of the members, as individuals, that I’ve spoken to, are. There is another coalition that is working to combat that one.

And the coalition that you’re leading — can you give me a sense of its breadth?

Absolutely. [The members range] from the Sierra Club to the Southern Nevada Home Builders Association, which never agree on anything. All of the public agencies that are able to legally take a position or a stand are opposed to it. The Las Vegas Chamber of Commerce — they are extremely opposed to it because they understand the ramifications for the economy. There are neighborhood activist groups. There’s a group called the Southwest Area Network, which is a group of neighbors who live in the southwest part of town who monitor zoning actions in their neighborhood, who are very much about protecting the value of their properties and the integrity of their neighborhood. So people who are typically on opposing sides — developers and anti-development groups — are involved.

Other than Mr. Chairez, Mr. Waters, and Americans for Limited Government, who’s in favor of this?

The Las Vegas Review-Journal, which is our local newspaper. They’re always in favor of stuff like that. They are very conservative, I’d say libertarian. That would be their take on it.

And is the Las Vegas Sun, the other major paper?

They are opposed to it. They’ve had editorials.

Is there anything else you want to add?

I’m curious as to why this organization [Americans for Limited Government] is pushing this so heavily in all of these states, what they think will be gained by it. I certainly understand the dissatisfaction with the Kelo decision — I tend to agree with it. But for the rest of what this is, this is an attempt to shut down public works projects, it’s an attempt to do away with zoning laws as they exist, as communities have created them for the last hundred years.