FILED

Electronically
CV21-00683
2021-08-27 09:57:11 AM
Alicia L. Lerud
1 Clerk of the Court
CODE: 3370 Transaction # 8617804
2

4 IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

7
WASHOE COUNTY SCHOOL DISTRICT, a Case No.: CV21-00683
8 political subdivision of the State of Nevada,
9
Dept. No.: 9
Plaintiff/Petitioner,
10
v.
11

12 WASHOE COUNTY, a political subdivision

17 Defendants/Respondents.

18
ORDER GRANTING MOTION TO DISMISS
19
This matter came on for hearing on August 10, 2021. At the time of the hearing, the Court
20
was in receipt of Defendants WASHOE COUNTY, THE WASHOE COUNTY BOARD OF
21
COUNTY COMMISSIONERS, and TAMMI DAVIS, WASHOE COUNTY TREASURER’s
22
(collectively “Washoe County”) Motion to Dismiss Complaint filed June 1, 2021.
23
Plaintiff/Petitioner WASHOE COUNTY SCHOOL DISTRICT (hereafter “the School District”)
24
filed an Opposition to Motion to Dismiss on July 21, 2021. Washoe County thereafter filed its Reply
25
to Opposition to Washoe County’s Motion to Dismiss Complaint on July 30, 2021.
26
Upon review of the record and following oral argument, this Court finds good cause appears
27
to GRANT Washoe County’s Motion to Dismiss.
28

-1-
 1 STANDARD OF REVIEW
2 When considering a Motion to Dismiss under NRCP 12(b)(5), “a complaint should only be
3 dismissed if it appears beyond a reasonable doubt that the plaintiff could prove no set of facts, which

4 if true, would entitle him to relief. Dismissal is proper where the allegations are insufficient to

5
establish the elements of a claim for relief.” Stockmeier v. State, Dept. of Corrections, 122 Nev. 385,
135 P.3d at 223. The Court must assume the complaint’s factual allegations are true and draw all
6
inferences in the non-moving party’s favor. Simpson v. Mars, Inc., 113 Nev. 188, 190, 929 P.2d 966,
7
967 (1997). Although it remains the general rule that allegations are accepted as true on a motion to
8
dismiss, that rule gives way when the allegations are contradicted by judicially noticeable facts or
9
documents referenced in the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988
10
(2001).
11 In Nevada, a pleading need only contain a “short and plain statement of the claim showing
12 that the pleader is entitled to relief.” NRCP 8(a). Specifically, the Nevada Supreme Court has
13 explained that a complaint “need only set forth sufficient facts to demonstrate the necessary elements
14 of a claim for relief so that the defending party has adequate notice of the nature of the claim and

15
relief sought.” Western States Const., Inc. v. Michoff, 108 Nev. 931, 936, 840 P.2d 1220, 1223
(1993). Accordingly, “issues that are fairly noticed to the adverse party” should not be dismissed.
16
Smith v. Eighth Judicial Dist., 113 Nev. 1343, 1348, 950 P.2d 280, 283 (1997).
17
BACKGROUND
18
This case arises out of the decision of the Washoe County Board of County Commissioners
19
(“BCC”) to authorize the withholding of future tax distributions from the taxing units, including the
20
School District, to fund refunds, which were determined to be overpaid property taxes, to Incline
21
Village/Crystal Bay taxpayers for the 2003-04, 2004-05, and 2005-06 tax years.
22 On or about August 23, 2011, the BCC authorized the withholding of the refund amount,
23 plus interest from taxing units in Washoe County, including the School District, to fund the refund.
24 On or about October 21, 2019, Findings of Fact, Conclusions of Law and Order entered in
25 Case No. CV03-06922, vacated the State Board’s prior equalization decision, ordered the

26
replacement of the 2003-04, 2004-05 and 2005-06 taxable land values for residential parcels in
Incline Village and Crystal Bay with 2002-03 taxable land values and further ordered the payment
27
of the property tax refunds, including statutorily mandated interest, to the taxpayers within one
28
year.

-2-
 1 Washoe County thereafter appealed that decision to the Supreme Court. In or around
2 February 2020, a negotiated settlement was preliminarily agreed upon, and that agreement required
3 refund payments to begin in or around July 2020, with all refunds being paid by October 2022.

4 In or around March 30, 2020, the School District sent a letter to Washoe County, urging the

5
County to hold off on paying the refunds and to “pay the refunds on a pay-as-you go approach. Id.
p. 13:20-24.
6
At the time of the BCC’s July/August 2020 meeting, the approval of the settlement was on
7
the agenda. The School District submitted a letter to the BCC objecting to the funds being withheld
8
from them asserting a county error. The BCC ultimately approved and accepted the agreement on or
9
about August 4, 2020.
10
On or about February 23, 2021, the BCC authorized withholding the principal and interest
11 from future tax distributions to the taxing units. The School District again, sent a written letter
12 objecting to the proposed withholding action.
13 The School District thereafter filed the instant complaint alleging that the withholding of
14 future tax distributions to fund the refunds of the overpaid taxes to the Incline Village/Crystal Bay

15
taxpayers as previously ordered in Case No. CV03-06922, is invalid.
Washoe County comes now, requesting this Court dismiss the Complaint for a failure to
16
state a claim upon which relief can be granted.
17
DISCUSSION
18
As a preliminary matter, Washoe County asserts there is no basis for granting the declaratory
19
relief sought in this matter.
20
Declaratory relief is available only if: (1) a justiciable controversy exists between persons
21 with adverse interests, (2) the party seeking declaratory relief has a legally protectable interest in the
22 controversy, and (3) the issue is ripe for judicial determination. Knittle v. Progressive Casualty Ins.
23 Co., 112 Nev. 8, 10, 908 P.2d 724, 725 (1996).
24 The School District argues “the only issue before this Court is whether the law permits the

25
County to withhold future property tax distributions to the District to fund a private settlement
agreement between the County and property owners who had been harmed by the Assessor’s
26
unconstitutional valuations.” Opp’n. p. 4:19-21. Further, the School District asserts Declaratory
27
relief is available to a party “whose rights, status or other legal relations are affected by a statute.”
28
NRS 30.040.

-3-
 1 The School District further argues that NRS 354.220 and NRS 354.240 do not apply in this
2 circumstance. The School District reasons the statutory construction of NRS 354.220(4)1 and NRS
3 354.240(1)2 do not permit the County to offset real tax revenue from local taxing units. Opp’n. p.

4 10:3-4. Moreover, the School District argues the withholding action is time barred pursuant to NRS

5
354.2303.
The County contends the Supreme Court has previously authorized the withholding from tax
6
units pursuant to NRS Chapter 354. N. Lake Tahoe Fire v. Washoe Cnty. Comm’rs. 129 Nev. 682,
7
310 P.3d 583 (2013). The County asserts N. Lake Tahoe Fire is the existing, prevailing, legal
8
precedent controlling this case. This Court agrees.
9
The County reasons that similar to N. Lake Tahoe Fire, in this case, “the specific action
10
taken by the BCC, after considering various ways in which the refund and interest payment could
11 be funded, was to authorize the withholding of amounts from property tax distributions made to the
12 various county taxing units that had previously benefited from the excessive property taxes to cover
13 the cost of the refunds plus interest, essentially offsetting the refunded amounts against the
14 distributions.” See Ans. Br. p. 7:4-14. The County maintains the BCC withholding of tax

15
distributions was authorized by the provisions of NRS 354.220 and NRS 354.240.
In N. Lake Tahoe Fire, the Supreme Court reasoned:
16
County commissioners have the power to budget, spend, and levy and collect
17 property taxes, NRS 244.150; NRS 244.1505; NRS 244.200-.255, and to “do and perform
18
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
19 commissioners perform various functions of executive dimension. See Queen Anne’s
20
1NRS 354.220(4) - In the opinion of the board of county commissioners, or the county treasurer in those cases in which
21
the county treasurer is authorized to make a refund, the applicant for refund has a just cause for making the application
and the granting of the refund would be equitable.
22
2 354.240(1) - If a board of county commissioners determines by competent evidence that money has been paid into the
23
treasury of the county under any of the circumstances mentioned in NRS 354.220, the board of county commissioners,
by its unanimous resolution, may direct the county treasurer to refund to the applicant the amount of money paid into the
24
county treasury in excess of the amount legally payable.
25
3 Pursuant to NRS 354.230, “the claim for a refund of money must be presented to the board of county commissioners, or
26 the county treasurer in those cases in which the county treasurer is authorized to make a refund, within 3 years after the
time the claim was incurred.” Washoe County maintains there are numerous possibilities for when the claims were
27 incurred. Washoe County further maintains that under each possibility, a timely claim was submitted. Here, by virtue of
the filing of the complaint, and ongoing litigation as well as the application for refund, the claim manifested itself in the
28 filing of the original complaint. Thus, the statute of limitations argument is rejected.

-4-
 1 Conservation, Inc. v. Cnty. Comm’rs of Queen Anne’s Cnty., 382 Md. 306, 855 A.2d 325,
335 (2004); Pa. State Ass’n of Jury Comm’rs v. Commonwealth, 64 A.3d 611, 615 n. 8 (Pa.
2
2013); see also Ball v. Fitzpatrick, 602 So.2d 873, 878 (Miss. 1992) . . .
3 Here, under the basic powers set forth above and NRS 354.240, the County
Commissioners had administrative authority to withhold distributions from the taxing
4 entities and, within that authority, to decide the precise manner in which to furnish the tax
5
refunds . . . 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,
6 it is up to the County Commissioners to determine how to satisfy the refund and
corresponding budgeting obligations, so long as their determinations does not conflict with a
7 legislative purpose . . .
8
N. Lake Tahoe Fire v. Washoe Cnty. Comm’rs, 129 Nev. 682, 310 P.3d 583 (2013).
9
Washoe County maintains the Nevada Supreme Court has found NRS 354.220 and NRS
10
354.240 apply as the controlling law. Washoe County maintains the details of the executive
11 department budget process fall under the BCC’s executive function.
12 The School District next argues the withholding action violated the Nevada Constitution. The
13 School District maintains there is a “mandate for a uniform system of schools” as well as a sufficient
14 level of funding. Nev. Const. Art. XI, § 2 and § 6(12). The School District asserts taking funding

15
away from the School District “would seriously violate constitutional principles by creating a
disparity between Washoe County and other Nevada school districts by dropping the per pupil
16
funding below that received in other jurisdictions.” Opp’n. p. 15:1-6.
17
Washoe County asserts there has been no violation of the Nevada Constitution. Washoe
18
County argues the withholding is scheduled to commence as refunds are paid. Therefore, the first
19
withholding will be due in or around September 2021. Washoe County contends the budgeting
20
process for 2022 and 2023 is ongoing. Washoe County further contends the School District knew of
21 the potential liability before the budgeting process ever began. Washoe County argues “the School
22 District neither prepared fiscally for this possibility despite recognizing it 15 years ago, nor did it
23 choose to recognize the liability in the budgeting process.” Mot. p. 20:23-26. Washoe County posits
24 it was not any action on the part of the County that would cause the alleged injury to the School

25
District, it is instead the own actions of the School District that have caused their alleged injuries.
Washoe County asserts the withholding of funds from the School District does not impact the
26
State. The withholding only impacts the School District and the other taxing units in Washoe County
27
in proportion to which the funds were originally distributed in the previous tax years. Washoe
28
County further asserts per the Court’s prior order, the School District, Washoe County, and other

-5-
 1 local taxing units received funds that it should not have received. Specifically, in the School
2 District’s case, the School District previously received approximately $10 million which it should
3 not have had for its use. Washoe County maintains the School District is seeking to retain the

4 received funds to the detriment of the citizens of Washoe County.

5
Upon review of the record and following oral argument, the Court finds that, as it has
previously been determined, the School District utilized approximately $10 million dollars from the
6
2003-2004, 2004-2005 and 2005-2006 tax years, which it should not have had available. The return
7
of those funds has been previously ordered and mandated by the district court. Furthermore, the
8
Court finds, pursuant to NRS 354.240, the Board of County Commissioners has the authority to
9
withhold from future tax distributions to taxing units in the jurisdiction for property tax refunds.
10
The Court finds the Board has chosen to authorize the withholding of the funds from each of the
11 taxing units to fund the refunds. Finding such, the Court does not find it proper to inject itself into
12 the budget process as exercised by the Washoe County Board of County Commissioners.
13 Furthermore, this Court finds N. Lake Tahoe Fire provides guidance and instruction to this
14 Court pursuant to the doctrine of Stare Decisis which is dispositive of this case. Additionally, this

15
Court does not have the authority nor inclination to attempt to effectively overrule a binding decision
of the Supreme Court on an issue upon which the Supreme Court has already ruled. Moreover, as
16
was discussed in N. Lake Tahoe Fire, for the same reasoning, this Court as well, finds the instant
17
matter does not present a justiciable controversy4. Therefore, the Court finds the instant matter must
18
be dismissed for a failure to state a claim upon which relief may be granted.
19
///
20
///
21 ///
22
4
23 As stated in North Lake Tahoe explaining the doctrine of Justiciable Controversy:
The Legislature enacts laws, and in turn, the executive branch is tasked with “carrying out and enforcing th[ose]
24 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
25 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
26 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
27 (2000) (quoting Galloway, 83 Nev. at 20, 422 P.2d at 242), “ ‘[t]o declare what the law is [,] or has been.’
” Berkson, 126 Nev. at ––––, 245 P.3d at 565(first alteration in original) (quoting 1 Thomas M. Cooley, Constitutional
28 Limitations 191 (8th ed.1927)).

-6-
 1 ACCORDINGLY, and good cause appearing, IT IS HEREBY ORDERED that Defendants
2 WASHOE COUNTY, THE WASHOE COUNTY BOARD OF COUNTY COMMISSIONERS, and
3 TAMMI DAVIS, WASHOE COUNTY TREASURER’s Motion to Dismiss Complaint is

4 GRANTED.

5
IT IS SO ORDERED.

6
DATED this 27th day of August 2021.

8
________________________________
DISTRICT JUDGE
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-7-
 1 CERTIFICATE OF SERVICE
2 Pursuant to NRCP 5(b), I certify that I am an employee of the Second Judicial District Court
3 of the State of Nevada, County of Washoe; that on this 27th day of August, 2021, I deposited in the
4 County mailing system for postage and mailing with the United States Postal Service in Reno,
5 Nevada, a true copy of the attached document addressed to:
6 [NONE]
7
Further, I certify that on the 27th day of August, 2021, I electronically filed the foregoing
8
with the Clerk of the Court electronic filing system, which will send notice of electronic filing to the
9
following:
10

11 ADAM HOSMER-HENNER, ESQ. for WASHOE COUNTY SCHOOL DISTRICT

17

18
_______________________________________
19
Judicial Assistant
20

21

22

23

24

25

26

27

28

-8-