Kimble v. Swackhamer

• Decision Date: 19 September 1978
• Docket Number: No. 10650,10650
• Parties: Isabel KIMBLE, Bruce Blackadar, Mary Frazzini, Theodore Oleson, Jr., and Marjorie da Costa Eastman, Appellants, v. William D. SWACKHAMER, Secretary of State of the State of Nevada, and Legislative Commission of the State of Nevada, Intervener, Respondents.
• Court: Nevada Supreme Court

Page 161

584 P.2d 161

94 Nev. 600

Isabel KIMBLE, Bruce Blackadar, Mary Frazzini, Theodore

Oleson, Jr., and Marjorie da Costa Eastman, Appellants, v. William D. SWACKHAMER, Secretary of State of the State of

Nevada, and Legislative Commission of the State of

Nevada, Intervener, Respondents.

No. 10650.

Supreme Court of Nevada.

Sept. 19, 1978.

Phyllis Halsey Atkins, Reno, for appellants.

Robert List, Atty. Gen., and Donald F. Klasic, Deputy Atty. Gen., Carson City, for respondent Secretary of State.

Frank W. Daykin, Legislative Counsel, Carson City, for respondent Legislative Commission.

OPINION

THOMPSON, Justice:

At issue is the constitutionality of chapter 174, 1977 Nev. Stats., which requires the submission of an advisory question to the registered voters of this state on the ratification of the proposed amendment to the Constitution of the United States commonly known as the equal rights amendment. It is asserted that the chapter violates article V of the federal constitution. The district court found no constitutional infirmity. For reasons hereafter expressed we agree with that court and, therefore, affirm the judgment entered below.

The advisory question to be presented at the 1978 general election is set out in section 4 of the chapter. It is:

"Do you recommend that the Nevada legislature ratify the following proposed amendment to the United States Constitution, commonly known as the equal rights amendment?

"Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

"Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

"Sec. 3. This amendment shall take effect two years after the date of ratification.

"YES ______ NO ______"

Section 3 and section 5 of the chapter each expressly state that "the result of the voting on this question does not place any legal requirement on the legislature or any of its members." Section 6 directs the secretary of state to certify the result of the votes cast on the question to the president of the senate and the speaker of the assembly as the recommendation of the registered voters of the state. Thus, the legislature may vote for or against ratification, or refrain from voting on ratification at all, without regard to the advisory vote.

Article V of the federal constitution divests the people of authority to themselves ratify amendments to the federal constitution. Such power is limited to two methods, by action of the legislatures of three fourths of the states, or conventions in a like number of states. Hawke v. Smith, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (1920). ¹

The appellants contend that chapter 174, in practical effect, grants the registered voters of Nevada the authority to ratify the proposed equal rights amendment to the federal constitution since we may presume that the legislature will be governed by the outcome of the advisory vote if, perchance, it recommends ratification. However, the cases upon which they mainly rely in presenting this contention are not supportive. Those cases are Hawke v. Smith, supra, and Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922).

Hawke held that there could be no referendum upon the decision of a state legislature to ratify or reject a proposed amendment to the federal constitution. And Leser merely held that the function of a state legislature in ratifying a proposed amendment to the federal constitution was a federal function transcending any limitations sought to be imposed by the people of the state. ²

Chapter 174 does not concern a binding referendum, nor does it impose a limitation upon the legislature. As already noted, the legislature may vote for or against ratification, or refrain from voting on ratification at all, without regard to the advisory vote. The recommendation of the voters is advisory only. In re Estate of Hogan, 259 Iowa 887, 146 N.W.2d 257, 259 (1966). To recommend does not mean to bind. Fletcher v. Porter, 203 Cal.App.2d 313, 21 Cal.Rptr. 452, 454 (1962). Consequently, we find it wholly impossible to construe chapter 174 as a limitation on legislative power violative of article V of the federal constitution. ³ Rather the chapter simply specifies a means by which to assist the legislature whether to consent or not to consent to the proposed amendment. The following words of Dyer v. Blair, 390 F.Supp. 1291, 1307 (N.D.Ill.1975), are apposite to the case at hand:

"Article V identifies the body either a legislature or a convention which must ratify a proposed amendment. The act of ratification is an expression of consent to the amendment by that body. By what means that body shall decide to consent or not to consent is a matter for that body to determine for itself. This conclusion is not inconsistent with the premise that the definition of the term 'ratified' is a matter of federal law. The term merely requires that the decision to consent or not to consent to a proposed amendment be made by each legislature, or by each convention, in accordance with procedures which each such body shall prescribe."

Affirmed.

BATJER, C. J., and MANOUKIAN and MOWBRAY, JJ., concur.

GUNDERSON, Justice, dissenting:

I respectfully dissent.

I question whether the federal issue could, in any event, be considered correctly decided. Moreover, so far as I can perceive, my colleagues have not explained how it is proper under the Nevada Constitution for our Legislature through an "Act" obviously intended neither to make nor to modify law, and therefore manifestly outside the Legislature's normal law-making function to utilize this state's election ballots in ways not contemplated by Nevada's Constitution.

As the Legislative Counsel concedes, in Gibson v. Mason, 5 Nev. 283 (1869), this court declared the Legislature could not properly use the ballots to shift ultimate responsibility for enactment of a proposed law to the voters. ¹ A fortiori, it would seem the Legislature, by Constitution solely a law-making body, may not pass a non-law requiring an "advisory" vote which binds neither the Legislature nor anyone else, and which defers to a future day decisions on how the vote may be used to shift or dilute legislative responsibility.

In Opinion of the Justices Relative to Eighteenth Amendment, 262 Mass. 603, 160 N.E. 439 (1928), the Supreme Judicial Court of Massachusetts treated a question identical in principle to the one before us, i. e. whether an attempt through initiative petition to order an advisory question onto the State election ballots was proper under the Massachusetts Constitution. Deciding such a directive was an improper exercise of law-making power, the Massachusetts court noted its view that "(t)he precise question is whether it is a 'law' . . ." Holding in the negative, that respected court noted that "the word 'law' imports a general rule of conduct," 160 N.E. at 440, which of course the "Act" of our Legislature, now under consideration, most certainly does not involve. The Court went on to note that the supposed law was

. . . wanting in features essential to constitute its provisions a law within any permissible conception of the meaning of that word. Superficial appearances cannot clothe with the attributes of law something in substance vain and inoperative. The mandate to the secretary of the commonwealth in section 2 to tabulate the returns of the votes and to "transmit copies * * * to each Senator and Representative in Congress from this commonwealth" is subsidiary and...