Lueck v. Teuton, 53596.

Citation219 P.3d 895
Case DateNovember 12, 2009
CourtSupreme Court of Nevada
219 P.3d 895
Robert W. LUECK, Movant,
Robert W. TEUTON, Respondent.
In the Matter of the Commission of the Honorable Robert W. Teuton, District Judge.
No. 53596.
No. 54238.
Supreme Court of Nevada.
November 12, 2009.

[219 P.3d 896]

Motion for leave to file, on behalf of the State of Nevada, a petition for a writ of quo warranto removing respondent from office (No. 53596), and question regarding the commission of the Honorable Robert W. Teuton, Judge, Eighth Judicial District Court, Family Court Division (No. 54238).

Robert W. Lueck, Esq., and Robert W. Lueck, Las Vegas, for Movant.

Catherine Cortez Masto, Attorney General, and C. Wayne Howie, Solicitor General, Carson City, for Governor Jim Gibbons and the Honorable Robert W. Teuton.

Abrams Law Firm, LLC, and Jennifer V. Abrams, Las Vegas, for Amicus Curiae State Bar of Nevada, Family Law Section.

Before the Court En Banc.


By the Court, CHERRY, J.:

Under the Nevada Constitution, when a district judge's office is vacated before the office's term expires, the Governor may appoint an individual to temporarily fill the office until "the first Monday of January following the next general election." Nev. Const, art. 6, § 20(1) and (2). In July 2008, a district judge vacated the office, and a temporary appointment later was made, several weeks before the November general election. The judge's office, however, was not included on the 2008 ballot. Instead, the appointed judge was commissioned to serve until the office could be filled by virtue of the 2010 general election, giving rise to the question of concern to this court: whether the commission's extension beyond the first Monday in January following the 2008 general election is valid.

That question initially was brought to this court's attention when movant, a private Nevada citizen, sought leave to file a petition on behalf of the State of Nevada for a writ of quo warranto removing the judge from office. As we conclude that movant lacks standing, however, we consider the merits of the judge's commission under our supervisory responsibilities over the judicial branch.

The legitimacy of the extended commission depends on the meaning of "next general election," as used in the Nevada Constitution provision noted above. Thus, in resolving this issue, we address whether "next general election" means the election most immediately following the appointment or, as has been asserted, the next general election in which the vacancy may be filled in strict compliance with all election deadlines. In view of the apparent intent behind the Nevada Constitution's "next general election" language to allow Nevada citizens to elect a new district

219 P.3d 897

judge as soon as possible after an office becomes vacant and to correspondingly limit the Governor's appointment powers, we conclude that judicial vacancy appointments expire on the first Monday in January after the first general election following that appointment, without exception. Here, then, with regard to the temporary appointment at issue, the appointment expired on the first Monday in January after the November 2008 general election.


In July 2008, a district judge serving the Family Court Division of the Eighth Judicial District Court resigned, resulting in a vacancy approximately two and one-half years before that office's term was set to expire. The vacancy was filled by temporary appointment in August 2008, when Governor Jim Gibbons appointed Judge Robert W. Teuton to the office, beginning August 22, 2008. Judge Teuton's written commission designates the first Monday in January 2011 as its expiration date. Although a general election was held in November 2008, the district judge office was not included on the ballot. Thus, Judge Teuton has continued to serve in the office since 2008.

Under Article 6, Section 20(2) of the Nevada Constitution, when the Governor fills a vacant district judge office, the office's term "expires on the first Monday of January following the next general election." Arguing that, here, "next general election" meant the 2008 general election, rendering Judge Teuton's commission invalid beyond January 5, 2009, a private Nevada citizen, movant Robert W. Lueck, moved this court for leave to seek a writ of quo warranto to remove Judge Teuton from office, after the attorney general denied Lueck's written requests that she institute such quo warranto proceedings. Judge Teuton opposed the motion, primarily contesting Lueck's standing to file a petition for a writ of quo warranto, as Lueck has only a "private citizen" interest in obtaining the requested relief. Lueck replied to Judge Teuton's opposition, as permitted. After reviewing those initial filings, we directed Lueck and Judge Teuton to file supplements further addressing the standing issue.

Concerned with Lueck's standing and cognizant that the question posed by his motion raised concerns of statewide importance regarding the validity of Judge Teuton's continued service as a district judge, and based on this court's responsibility to oversee the judiciary, we concluded that further inquiry was warranted. See Nev. Const. art. 6, § 19; Halverson v. Hardcastle, 123 Nev. 29, ___, ___, 163 P.3d 428, 440, 443 (2007) (noting that courts have "inherent power to ... preserve the integrity of the judicial process" and that this court possesses "supervisory authority and duties over the proper administration of justice"); Goldman v. Bryan, 104 Nev. 644, 654, 764 P.2d 1296, 1302 (1988) (stating that "under its general power of superintendence," this court "may exercise its administrative authority to conduct an inquiry and take such action as deemed necessary, short of removal of a judge from office"), abrogated on other grounds by Halverson, 123 Nev. 29, 163 P.3d 428; see also NRS 34.160 (recognizing that this court may issue a writ of mandamus to require a public officer to perform an act legally required by his or her office); cf. Nev. Const, art. 6, § 4 (providing that this court has the power to issue writs of mandamus). Accordingly, this court entered an order directing the Governor and Judge Teuton to show cause why Judge Teuton's commission and service in office beyond January 5, 2009, should not be declared invalid under Section 20(2), and why this court should not issue a writ of mandamus directing the Governor to declare Judge Teuton's office vacant. See NRS 3.080(1) (stating that "[t]he Governor shall declare vacant the office of district judge"). We also invited the Family Law Section of the State Bar of Nevada to file an amicus curiae brief addressing the validity of Judge Teuton's commission and service in office beyond January 5, 2009. Governor Gibbons, Judge Teuton, and the Family Law Section have timely responded to our order, arguing that interpreting Section 20(2) as mandating the office's placement on the 2008 general election ballot would be unworkable under Nevada's election laws, and therefore, that Judge Teuton should hold office until after the next election in 2010.

219 P.3d 898

Currently before this court, then, are two subjects. First, does Lueck have standing to pursue quo warranto proceedings and, if so, should leave to file the petition be granted? Second, what is the meaning of Section 20(2) and what is the provision's effect on the validity of Judge Teuton's continuing service in office?

Lueck's motion

Quo warranto generally is available to challenge an individual's right to hold office and to oust the individual from the office if the individual's claim to it is invalid or has been forfeited. See Secretary of State v. Nevada State Legislature, 120 Nev. 456, 93 P.3d 746 (2004). This court is vested with original "power to issue writs of ... quo warranto" by the Nevada Constitution Article 6, Section 4. Quo warranto proceedings typically are governed by NRS Chapter 35, which provides for "civil actions" against persons who unlawfully hold a public office, NRS 35.010(1); see State ex rel. Holland v. City of Reno, 70 Nev. 167, 262 P.2d 953 (1953), unless that chapter fails to provide adequate relief. See Halverson, 123 Nev. at ___ n. 8, 163 P.3d at 437 n. 8 (stating that, "while NRS Chapter 35 creates an alternative remedy, it does not impact this court's original power [under Nevada Constitution Article 6, Section 4] to consider writ petitions seeking quo warranto relief); State v. Sadler, 25 Nev. 131, 58 P. 284 (1899) (recognizing that, under the circumstances asserted therein, the statutes preceding NRS Chapter 35 failed to provide adequate relief in the event that the attorney general refused to institute quo warranto proceedings and, in light of this court's original constitutional jurisdiction over writs of quo warranto, allowing a private individual claiming title to the office to pursue such relief on behalf of the state).

The Legislature has not authorized quo warranto petitions by private citizens with only a general interest in seeing this state's laws upheld. Under NRS Chapter 35, only persons "claiming to be entitled to a public office," NRS 35.050, or otherwise through the attorney general and "on the leave of the court," NRS 35.040, may commence a quo warranto action against the alleged unlawful officeholder or usurper. See State ex rel. Harvey v. Dist. Ct., 117 Nev. 754, 759-60, 32 P.3d 1263, 1267 (2001). Thus, the NRS Chapter 35 provisions that address who may institute a quo warranto action to oust an individual from office do not permit a person with only a general interest in quo warranto relief to pursue such a remedy, absent participation from the attorney general and leave of the court.

Here, the attorney general declined to institute a civil action in the nature of quo warranto against Judge Teuton, and Lueck does not claim to be entitled to Judge Teuton's office. Lueck therefore does not fit within either provision of NRS Chapter 35 that addresses who may institute a...

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