Aaron L. Katz v. Incline Village General Improvement District

The First Amendment right to petition clause contains a heightened standard precluding liability when a citizen exercises his/her right to bring suit over issues of public concern. Under that standard, the filing of a well-founded lawsuit may not be punished where objectively it is determined to be founded upon some statutory and/or other legally recognized basis, even where his/her suit is brought for some improper purpose [Bill Johnson Restaurants, Inc. v. NLRB, 461 U.S. 731, 740-43, 103 S.Ct. 2161 (1983); Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 58, 113 S.Ct. 1920 (1993); BE&K Construction, Co. v. National Labor Relations Board, 536 U.S. 516, 525, 528-37, 122 S.Ct. 2390 (2002)]. But this case addresses an issue left open by this Court in BE&K. Can attorney’s fees rules/statutes be used to penalize a “pure petition” (meaning a citizen’s lawsuit directly against a local government for declaratory and injunctive relief to redress grievances)? Here the Nevada Supreme Court held in the affirmative, punishing Petitioner through use of a statute that Court characterized as “fee-shifting.” Thus the following questions: 1. May a petitioning litigant be held liable for his/her adversary’s litigation costs and attorney’s fees based upon a punitive statute, where the litigant files a “pure petition” to redress grievances of public concern, and his/her litigation is not a “sham?”