Nevada Judges Ass'n v. Lau, 26177

• Decision Date: 31 January 1996
• Docket Number: No. 26177,26177
• Citation: 112 Nev. 51,910 P.2d 898
• Parties: NEVADA JUDGES ASSOCIATION; The Honorable D. Lanny Waite, Justice of the Peace, Individually and as President of the Nevada Judges Association; and the Honorable Charles M. McGee, District Judge, Individually and as President of the Nevada District Judges Association, Petitioners, v. Cheryl LAU, as Secretary of State of Nevada, Respondent, and Nevadans for Term Limits and Responsible Campaign Funding, Real Party in Interest.
• Court: Nevada Supreme Court

Page 898

910 P.2d 898

112 Nev. 51

NEVADA JUDGES ASSOCIATION; The Honorable D. Lanny Waite,

Justice of the Peace, Individually and as President of the

Nevada Judges Association; and the Honorable Charles M.

McGee, District Judge, Individually and as President of the

Nevada District Judges Association, Petitioners, v. Cheryl LAU, as Secretary of State of Nevada, Respondent, and Nevadans for Term Limits and Responsible Campaign Funding,

Real Party in Interest.

No. 26177.

Supreme Court of Nevada.

Jan. 31, 1996.

Rehearing Denied Apr. 30, 1996.

Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for Petitioners.

Frankie Sue Del Papa, Attorney General, and Kateri Cavin, Deputy Attorney General, Carson City, for Respondent.

Maddox & Walker, Carson City, for Real Party in Interest.

OPINION

ROSE, Justice:

On September 29, 1994, the Nevada Judges Association, D. Lanny Waite, Justice of the Peace, individually and as President of the Nevada Judges Association, and Charles M. McGee, District Judge, individually and as President of the Nevada District Judges Association, filed this original petition for a writ of mandamus requesting that a term limits initiative, which was to appear as Question Number 9 in the November 1994 general election, be removed from the ballot. On October 4, 1994, this court denied petitioners' request to intervene before the election and ordered that the respondent, Secretary of State Cheryl A. Lau, and the real party in interest, Nevadans for Term Limits and Responsible Campaign Funding, file answers. This court subsequently received timely answers from the respondent and from the real party in interest.

In the November 1994 election, the voters approved Question Number 9. The measure is not effective immediately, but must be passed by the electorate a second time before it becomes effective, pursuant to Article 19, Section 2(4) of the Nevada Constitution.

Petitioners contend that Question Number 9 (the initiative) is invalid because it violates the equal protection and due process guarantees of the Nevada and United States constitutions and because its impact on judicial offices was inadequately explained. The part of the initiative with which petitioners are concerned would amend Article 6, Section 11 of the Nevada Constitution by adding the following language:

No person may be elected a justice of the supreme court, judge of any other court, or justice of the peace more than twice for the same court, or more than once if he [sic] has previously served upon that court by election or appointment.

The constitutionality of the initiative

Petitioners contend that the initiative violates the equal protection and due process guarantees of the Nevada and United States constitutions.

The test for determining the constitutionality of state restrictions on elections is set forth in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). In setting out the test, the Supreme Court first noted that "the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions." Id. at 788, 103 S.Ct. at 1570. The Court went on to state:

Constitutional challenges to specific provisions of a State's election laws therefore cannot be resolved by any "litmuspaper test" that will separate valid from invalid restrictions. Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. The results of this evaluation will not be automatic; as we have recognized, there is "no substitute for the hard judgments that must be made."

Id. at 789-90, 103 S.Ct. at 1570 (citations omitted) (quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974)). Thus, under Anderson, this court must consider: (1) the nature of the asserted injury to the protected rights; (2) the interests put forward by the state as justification for that injury; and (3) the necessity for imposing the burden on the petitioners' rights rather than some less restrictive alternative.

The initiative would infringe upon the citizens' right to vote for the candidate of their choice and the judges' right to hold office. Voters' rights and candidates' rights cannot be easily separated: laws that affect candidates always have a correlative effect on the voters. Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 855-56, 31 L.Ed.2d 92 (1972). In the instant case, if the initiative is passed, it would thereafter permanently exclude incumbent judges from serving more than two terms in the same office and preclude voters from returning an incumbent who has served two terms to the same office.

There is no doubt that candidate eligibility requirements implicate basic constitutional rights. Anderson, 460 U.S. at 786, 103 S.Ct. at 1568-69. ¹ Ballot access restrictions burden

"two different, although overlapping, kinds of rights--the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms."

Id. at 787, 103 S.Ct. at 1569 (quoting Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968)).

The exclusion of candidates also burdens voters' freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for like-minded citizens.

Id. at 787-88, 103 S.Ct. at 1569. This court has stated:

The right to hold public office is one of the valuable rights of citizenship. The exercise of this right should not be declared prohibited or curtailed except by plain provisions of law. Ambiguities are to be resolved in favor of eligibility to office.

Gilbert v. Breithaupt, 60 Nev. 162, 165-66, 104 P.2d 183, 185 (1940). We recently reaffirmed this proposition. See SNEA v. Lau, 110 Nev. 715, 720, 877 P.2d 531, 535 (1994).

However, the United States Supreme Court has stated that a barrier to candidate access to the primary ballot does not, of itself, compel strict scrutiny under the equal protection clause. Bullock, 405 U.S. at 143, 92 S.Ct. at 855-56. "Although these rights of voters are fundamental, not all restrictions imposed by the States on candidates' eligibility for the ballot impose constitutionally suspect burdens on voters' rights to associate or to choose among candidates." Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569, 75 L.Ed.2d 547 (1983). The right to vote to fill every public office is not constitutionally protected; when an election is held, citizens have a constitutionally protected right to participate in the election on an equal basis with other citizens in the jurisdiction. Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9-10, 102 S.Ct. 2194, 2199-2200, 72 L.Ed.2d 628 (1982).

Since the right to run for office is not deemed a fundamental right and term limits do not hinder the equal participation of all citizens to vote in an election, the nature of the asserted injury caused by the initiative does not appear to be unconstitutionally severe.

As for the state interests put forward as justifying term limits, the argument for passage of the initiative placed on the ballot reads as follows:

Proponents argue that passage will stop career politicians since no one will be able to hold one office for several terms. Passage may lessen the power of lobbyists and special interest groups since state officials and local governing body members will only be in office for a limited amount of time. State officials and local governing body members would have the opportunity to focus on the issues instead of reelection. A greater number of Nevadans would be allowed to serve as state officials and as members of local governing bodies.

It is clear that the reasons cited above for term limits primarily apply to legislative and executive bodies, which are besieged by lobbyists and special interest groups. The term "career politicians" is used as a pejorative. Cases that have upheld term limits for legislators cite as one of the advantages of term limits that "career politicians" will be eliminated, allowing a return to the citizen representatives envisioned by the founders of this nation. Legislature of State of Cal. v. Eu, 54 Cal.3d 492, 286 Cal.Rptr. 283, 299, 816 P.2d 1309, 1325 (1991). This reasoning is not applicable to the federal judiciary in that the founders did not envision judges as politicians or as citizen representatives. On the contrary, the founders believed in giving judges lifetime appointments to insulate them from politics. See U.S. Const. art. III, § 1. The almost universal tradition has been that judges are trained professionals who make a career in the judiciary. In fact, in many countries judges select or are selected for a career track in the judiciary immediately after the completion of their legal training. Even now, no other states in this country have extended term limits to judges, indicating that others see benefits in maintaining a career judiciary.

We recognize that petitioners' concerns about the effects of term limits on the judiciary are...