Foley v. Kennedy
| Decision Date | 30 November 1994 |
| Docket Number | 24285,Nos. 24284,s. 24284 |
| Citation | 110 Nev. 1295,885 P.2d 583 |
| Parties | , 95 Ed. Law Rep. 1085 Joseph FOLEY, Appellant, v. James C. KENNEDY, Martha Pauline Kennedy, Ralf N. Rost, S. Patricia Rost, Tyrone C. Parker, Sally Parker, Laree Bates, and the Clark County Registrar of Voters, Deborah West, Respondents. Patrick C. CLARY, Fred E. Case, Hazel L. Case, Barbara Lynn Horn, Pamela R. Tarkanian, and Danny J. Tarkanian, Appellants/Cross-Respondents, v. Carolyn M. SPARKS, Respondent/Cross-Appellant, and Clark County Registrar of Voters, Deborah West, Respondent/Cross-Respondent. |
| Court | Nevada Supreme Court |
This is an appeal from a judgment finding a petition filed by a citizens group seeking to recall a member of the Board of Regents legally insufficient and an order directing the Registrar of Voters to take no further action on the recall petition. There is also a cross appeal from an order of the district court denying the subject of the recall effort his request for costs. 1
Appellants "The Citizens to Recall Carolyn M. Sparks" (hereinafter "the Citizens") organized a petition drive to recall respondent Carolyn M. Sparks ("Sparks") from her position as a University of Nevada Regent. The following events are relevant to the resolution of this appeal: (1) on November 2, 1992, the Citizens, pursuant to NRS 306.015, filed the notice of intent to circulate a petition to recall Sparks; (2) on November 3, 1992, a general election was held, at which time 90,881 registered voters cast ballots in the geographical area comprising University Regent Section 2, Subdistrict B (Sparks' district); and (3) on December 31, 1992, the Citizens submitted the recall petition to the Clark County Registrar of Voters, which, according to the district court's judgment, contained 12,887 valid signatures.
On January 22, 1993, the Clark County Registrar of Voters, represented by the Clark County District Attorney's Office, filed a petition for a hearing to determine the sufficiency of the recall petition. At the time, NRS 306.040 required the Registrar to automatically submit the matter to the district court for a sufficiency hearing. After an evidentiary hearing, the district court, having first announced its ruling in open court, filed its findings of fact, conclusions of law and judgment on February 19, 1993.
The lower court determined that the organizers of the recall drive had relied upon the erroneous advice of the assistant registrar of voters indicating that 10,301 signatures were essential for the presentation of a valid petition. This figure was based upon twenty-five percent of the vote for the specific office of Regent in the 1990 election. However, the district court determined that Article 2, section 9, of the Nevada Constitution provided that twenty-five percent of the votes cast in the relevant geographical area (the district that elected the officer) in the general election preceding the filing of the petition constituted the requisite number of signatures to be included in the recall petition. Utilizing the vote tallies from the November 3, 1992 election, the district court found that under the constitutional formula, 22,720 signatures were necessary to a valid petition for Sparks' recall. Although other issues regarding the sufficiency of the recall petition had been raised, 2 the court ultimately ruled that based on the deficient number of signatures, the recall petition was legally insufficient. 3 Accordingly the court directed the Registrar of Voters to take no further action regarding the recall petition.
Based upon the district court's ruling, Sparks sought to recover the legal costs incurred in her successful attempt to contest the sufficiency of the petition. Relying on NRS 18.020(4), 4 Sparks contended that the sufficiency hearing was a special proceeding and that she was entitled to an order requiring the losing party to pay her legal costs as the prevailing party. Appellants countered that such an order would, in effect, constitute a tax on the exercise of the constitutional right to recall elected officials and would have a chilling effect on future individuals legitimately seeking to improve their government. The court eventually granted appellants' motion to retax or strike Sparks' memorandum of costs.
The Citizens appeal on the legal questions of (1) whether the court applied the proper election in determining the number of required signatures and (2) whether they were reasonably entitled to rely upon the advice received by the Registrar as to the required number of signatures. Sparks filed a cross appeal from the district court's order granting the motion to retax or strike her memorandum of costs.
The Citizens contend that the district court selected the wrong election as the determinant of the minimum number of signatures required for their recall petition. They insist that the proper election to be referenced was the general election preceding their filing of notice of intent to seek recall.
Article 2, section 9, of the Nevada Constitution provides, in pertinent part:
Sec. 9. Recall of public officers: Procedure and limitations. Every public officer in the State of Nevada is subject, as herein provided, to recall from office by the registered voters of the state, or of the county, district, or municipality, from which he was elected. For this purpose a number of registered voters not less than twenty-five per cent (25%) of the number who actually voted in the state or in the county, district, or municipality electing said officer, at the preceding general election, shall file their petition, in the manner herein provided, demanding his recall by the people; they shall set forth in said petition, in not exceeding two hundred (200) words, the reasons why said recall is demanded.... If he shall not resign within five (5) days after the petition is filed, a special election shall be ordered to be held within twenty days (20) after the issuance of the call therefor, in the state, or county, district, or municipality electing said officer, to determine whether the people will recall said officer.
(Emphasis added.)
We conclude that the district court correctly found this language unambiguous as it says nothing concerning the filing of the notice of intent to recall. According to the referenced constitutional provision, twenty-five percent of the persons who actually voted in the relevant political division in the preceding general election shall file their petition for recall. Thus, twenty-five percent of the persons who voted in the general election preceding the filing of the petition must sign the recall petition.
The procedure for initiating and carrying out a recall petition is further specified by Chapter 306 of the Nevada Revised Statutes, and it is upon this Chapter that the Citizens claim support for their position. NRS 306.015 provides for the filing of a notice of intent to circulate a recall petition. NRS 306.015(2) mandates that this notice:
(a) Must be signed by three registered voters who actually voted in the state or in the county, district or municipality electing the officer at the last preceding general election.
(b) Must be signed before a person authorized by law to administer oaths that the statements and signatures contained in the notice are true....
NRS 306.015(3) requires the petition to be submitted within sixty days of the filing of the notice.
NRS 306.015 does not require the notice to contain a statement of the number of signatures required to be on the petition; however, NRS 306.020(2)(b) specifies that the petition itself must contain a statement of the required number of signatures. The latter subsection of the statute provides:
2. The petition must, in addition to setting forth the reason why the recall is demanded:
....
(b) Contain a statement of the minimum number of signatures necessary to the validity of the petition[.]
The Citizens allude to the impossible task of filing a notice less than 60 days prior to a general election and using the allotted 60 days to collect signatures (thus collecting signatures beyond the new election) in compliance with these statutes. They observe that no one can divine twenty-five percent of the persons "who actually voted" in a future election. Consequently, Citizens argue that it "must be" that the election preceding the filing of the notice is the relevant election for determining the required number of signatures.
Citizens' reasoning is contrary to general rules of statutory and constitutional construction, placing, as it does, greater interpretive effect upon one section of a statute than upon the plain terms of the constitution. The constitution may not be construed according to a statute enacted pursuant thereto; rather, statutes must be construed consistent with the constitution and, where necessary, in a manner supportive of their constitutionality. As this court has previously stated:
It should be noted at the outset that statutes should be construed, if reasonably possible, so as to be in harmony with the constitution. State of Nevada v. Glusman, 98 Nev. 412, 651 P.2d 639 (1982), appeal dismissed, 459 U.S. 1192[, 103 S.Ct. 1170, 75 L.Ed.2d 423] (1983); Milchem Inc. v. District Court, 84 Nev. 541, 445 P.2d 148 (1968). To this extent, an act is presumed to be constitutional and will be upheld unless the violation of constitutional principles is clearly apparent. Sheriff v. Martin, 99 Nev. 336, 662 P.2d 634 (1983); State of Nevada v. Glusman, above; ...
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