Secretary of State v. Burk

• Decision Date: 25 July 2008
• Docket Number: No. 51798.,No. 51768.,51768.,51798.
• Parties: Hon. Ross MILLER, Secretary of State of the State of Nevada, Petitioner, v. Dan BURK, Registrar of Voters for Washoe County; Harvard L. Lomax, Registrar of Voters for Clark County; and Kelly G. Helton, Churchill County Clerk, In Their Official Capacities, Respondents, and Howard Rosenberg; James Ainsworth; Thalia Dondero; Ruth Johnson; Mary Beth Scow; Bruce L. Woodbury; Lynn L. Pearce; and Harold Newman, In Their Capacities as Candidates for Certain Offices, Real Parties in Interest. Steve Sisolak, An Individual and Elector Citizen, Petitioner, v. Harvard L. Lomax, Registrar of Voters for Clark County; and David Roger, Clark County District Attorney, In Their Official Capacities, Respondents, and Bruce L. Woodbury, In His Capacity as Candidate for Clark County Commissioner, District A, Real Party in Interest.
• Court: Nevada Supreme Court

188 P.3d 1112

124 Nev. 56

Hon. Ross MILLER, Secretary of State of the State of Nevada, Petitioner, v. Dan BURK, Registrar of Voters for Washoe County; Harvard L. Lomax, Registrar of Voters for Clark County; and Kelly G. Helton, Churchill County Clerk, In Their Official Capacities, Respondents, and Howard Rosenberg; James Ainsworth; Thalia Dondero; Ruth Johnson; Mary Beth Scow; Bruce L. Woodbury; Lynn L. Pearce; and Harold Newman, In Their Capacities as Candidates for Certain Offices, Real Parties in Interest.

Steve Sisolak, An Individual and Elector Citizen, Petitioner, v. Harvard L. Lomax, Registrar of Voters for Clark County; and David Roger, Clark County District Attorney, In Their Official Capacities, Respondents, and Bruce L. Woodbury, In His Capacity as Candidate for Clark County Commissioner, District A, Real Party in Interest.

No. 51768.

No. 51798.

Supreme Court of Nevada.

July 25, 2008.

Catherine Cortez Masto, Attorney General, and Wayne C. Howie and Nhu Q. Nguyen, Senior Deputies Attorney General, Carson City, for Petitioner Miller.

Gordon & Silver, Ltd., and Dominic P. Gentile and Leigh C. Davis, Las Vegas, for Petitioner Sisolak.

David J. Roger, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark County, for Respondent Lomax.

Kelly G. Helton, Fallon, in Proper Person.

Richard A. Gammick, District Attorney, and Herbert B. Kaplan, Deputy District Attorney, Washoe County, for Respondent Burk.

Byron L. Bilyeu, Reno, for Real Party in Interest Rosenberg.

Arthur E. Mallory, District Attorney, and Thomas L. Stockard, Chief Deputy District Attorney, Churchill County, for Real Parties in Interest Pearce and Newman.

James Ainsworth, Sun Valley, in Proper Person.

Jones Vargas and Bradley Scott Schrager, Edward M. Garcia, and Joseph W. Brown, Las Vegas, for Real Parties in Interest Dondero, Johnson, Scow, and Woodbury.

Law Offices of Gamage & Gamage and William H. Gamage, Las Vegas, for Amicus Curiae.

Legislative Counsel Bureau Legal Division and Brenda J. Erdoes, Legislative Counsel, Eileen G. O'Grady, Chief Deputy Legislative Counsel, and Kevin C. Powers, Senior Principal Deputy Legislative Counsel, Carson City, for Intervenor Legislature of the State of Nevada.

Before the Court En Banc.

OPINION

By the Court, GIBBONS, C.J.:

Petitioners challenge real parties in interest's candidacies for state offices or positions on local governing bodies based on the Nevada Constitution's Article 15, Section 3(2) term-limit amendment. That amendment, which became effective in late November 1996, provides that a person may not serve more than 12 years in any state office or as a member of any local governing body. The primary question presented here is whether that amendment applies to an individual who was elected to a term of office before the amendment's effective date but commenced serving in that office thereafter. In addressing that question, we reaffirm precedent concluding that the amendment was validly enacted.

As viewed prospectively from its November 1996 effective date, the term-limit amendment applies to all years served in office after that date, even though the office may have been filled by virtue of the 1996 election before the amendment became effective. Thus, any candidate for a state office or position on a local governing body, who, like real parties in interest, has served 12 years or more after the November 1996 effective date is barred by the term-limit amendment from further service in that position. Although the amendment was presented to the voters in a slightly varied format during two successive general elections, the amendment's language was identical in both, clear in its content, and twice approved by the voters. As we have already recognized in Nevada Judges Ass'n v. Lau¹ and Rogers v. Heller,² and without compelling reasons for overturning that precedent, we reaffirm that the amendment was validly enacted, and we conclude that, under its plain terms, real parties in interest are barred from seeking reelection.

RELEVANT FACTS

In Nevada's 1994 general election, voters approved a citizen initiative proposing to amend Nevada's Constitution to preclude a person from serving in a public office or on a local governing body for more than 12 years. At that time, the proposed amendment was submitted to the voters in the form of a single question, Question 9, which encompassed elected officials from all three branches of government. For the amendment to become effective as part of Nevada's Constitution, Question 9 was required to be resubmitted to (and approved by) the voters at the 1996 general election "in the same manner" as it had been submitted to the voters in the 1994 election.³

Before Question 9 was resubmitted to the voters in 1996, the Nevada Judges Association filed a petition for a writ of mandamus with this court, seeking an order directing the Nevada Secretary of State to remove from the proposed term-limit amendment any limitation to the number of terms that members of the judiciary could serve.⁴ In the resulting decision, Nevada Judges Ass'n v. Lau,⁵ we denied the Association's request to exclude judges from the proposal. Because the initiative, as presented and explained on the 1994 election ballot, failed to adequately inform voters of the nature and effect of term limits on the judiciary,⁶ however, the Secretary of State was directed to clarify the term limit's effect by presenting the initiative "in the form of two questions, enabling voters to vote yes or no in regard to term limits for non-judicial public officers and yes or no in regard to term limits for judges and justices."⁷ Thus, on the 1996 ballot, the initiative was presented in two parts, each with "its own respective explanation and arguments."⁸

Nevada's 1996 general election was held on November 5. On that date, the voters again approved the term-limit amendment for nonjudicial public officers but disapproved the proposed amendment as to the judiciary. Thereafter, on November 27, 1996, following a canvass of the November 5 election results, the approved term-limit amendment became effective as part of the Nevada Constitution.⁹ The amendment was included in Nevada's Constitution as Article 15, Section 3(2):

No person may be elected to any state office or local governing body who has served in that office, or at the expiration of his current term if he is so serving will have served, 12 years or more, unless the permissible number of terms or duration of service is otherwise specified in this Constitution.

Now, nearly 12 years later, several elected officials who have concededly held their positions since 1997 dispute whether the term-limit amendment applies to bar them from serving another term starting in 2009. Thus, in these consolidated writ proceedings, the Nevada Secretary of State, petitioner Ross Miller, and an elector, Steve Sisolak, challenge the qualifications of eight candidates, real parties in interest, currently running for reelection to certain state offices and local governing bodies.¹⁰

Real parties in interest were originally elected or reelected to their various state offices and local positions in the November 1996 general election. They do not dispute that they commenced serving their respective terms in office in January 1997. Thereafter real parties in interest retained their offices through reelection; they will have completed their twelfth years of service since the term-limit amendment became effective when their current terms expire at the end of this year, 2008. Nevertheless, real parties in interest have asked respondents, filing officers for Washoe, Clark, and Churchill Counties, to include their names on the 2008 primary and general election ballots as candidates for the next terms of their offices, beginning in January 2009. According to petitioners, if each real party in interest is reelected and begins serving another term of office in 2009, that year will constitute his or her thirteenth year serving in the same office after the Nevada Constitution's 12-year term-limit provision became effective.

After real parties in interest filed their candidacies, petitioners submitted to the appropriate filing officers, under NRS 293.182, written challenges to real parties in interest's qualifications.¹¹ They alleged that real parties in interest were not qualified to run for another term in their current offices because, at the expiration of their current terms in 2008, they will have already completed the maximum number of years that they are allowed to serve under Article 15, Section 3(2) of the Nevada Constitution.

As required by NRS 293.182, the filing officers transmitted the challenges to the counties' respective district attorneys for determinations as to whether probable cause existed to support the allegation. The district attorneys determined that no probable cause existed, and therefore, they declined to file petitions in district court regarding real parties in interest's qualifications for reelection to their current offices. These writ proceedings followed.

In their petitions, petitioners seek writs of mandamus directing the filing officers—the Washoe and Clark County Registrars of Voters and the Churchill County Clerk—to exclude real parties in interest's names from the 2008 primary and general election ballots, under the Nevada Constitution's Article 15, Section 3(2) term-limit provision.¹²

As directed, real parties in interest have filed answers, as has the Washoe County Registrar of Voters. After the answers were filed, the Legislature was granted leave to intervene and the United States Term Limits Foundation was permitted to file an amicus curiae brief. In addition to asserting that terms of office filled pursuant to the 1996 election do not count toward the 12-year limit, the issues raised in response to these petitions go to the very validity of the amendment, as well as to the propriety of the requested relief.

DISCUSSIO...