Stumpf v. Lau, 23517
| Citation | 108 Nev. 826,839 P.2d 120 |
| Decision Date | 18 September 1992 |
| Docket Number | No. 23517,23517 |
| Parties | Felix F. STUMPF, Faun Dixon, and Donald Carlson, Petitioners, v. Cheryl A. LAU, in her Capacity as Secretary of State, Respondent. |
| Court | Supreme Court of Nevada |
Bible, Hoy, Trachok, Wadhams & Zive, Hamilton & Lynch, Reno, Richard E. Thornley, Carson City, John Calvin Jeffries, Jr., Charlottesville, Va., for petitioners.
Frankie Sue Del Papa, Atty. Gen., Kateri Cavin, Deputy Atty. Gen., Carson City, for respondent.
Susan Quig-Terry, Las Vegas, for Nevadans for Term Limits.
On August 19, 1992, this court issued an alternative writ of mandamus to the Secretary of State ordering the Secretary either to remove from the November ballot an initiative proposal that seeks to place limits on the number of terms a United States Congressman or Senator from Nevada may serve, or show cause why the proposal should not be rejected. 1 The writ After examining the written responses to the mandamus petition and listening to the oral arguments of counsel, the true nature of this initiative effort began to unfold: the initiative was designed not to change the law or the constitution but to let the people "express themselves" in what would amount to a straw poll or statement of public opinion on the question of how many voters favored or disfavored changes in the terms of our United States Senators and Congressmen. We heard no serious argument claiming that the people of this state, through the initiative process provided for in our state constitution, had the power to interfere with the qualifications and term limits of federal office holders. We received no acceptable explanation of how an initiative petition could bring about an amendment of the Nevada Constitution when the initiative did not mention the Nevada Constitution or even the word, "amend." The insufficiency in the number of valid signatures that appears from the record before us was not cogently argued on the merits but, rather, was dismissed with the argument that only a trial court could deal with such factual matters. Counsel for the Secretary of State argued that the mere fact that the initiative might be unlawful is not enough to disqualify the petition. Counsel for the initiative petitioners argued that people have the right to propose an idea; and if they have enough signatures, they have the right to vote on it. Even one of this court's justices wondered if it might not be proper to allow the matter on the ballot just so the people would "be able to express their views." This, then, is the real question: Should this court reject a proper challenge to the initiative process and thereby approve a statewide balloting whose only purpose is to allow the people to express their views, when all concerned appear to recognize that voter approval would enact a proposition that was contrary to the Constitution of the United States and would not have any legal force or effect? We answer the question in the negative and hold, as we did in Caine v. Robbins, 61 Nev. 416, 131 P.2d 516 (1942), that
was issued on [108 Nev. 828] three grounds. First, it appeared that if the initiative were approved by the voters, Nevada would be approving a law or an amendment of the state constitution that was violative of the United States Constitution and clearly beyond the powers of this state to enact. Second, it appeared that the initiative failed to gather sufficient valid signatures to qualify under the Nevada [108 Nev. 829] Constitution for placement on the ballot. Third, it appeared that the initiative was so poorly drafted that signers of the initiative petition were not advised as to whether they were seeking enactment of a law or an amendment to the Nevada Constitution. Mandamus is the proper remedy in such controversies. See, e.g., Lundberg v. Koontz, 82 Nev. 360, 418 P.2d 808 (1966) ().
[i]f a proposed amendment to the state Constitution by its terms specifically and necessarily violates a command or limitation of the Federal Constitution, ... the prescribed legal procedure for submitting such a proposed amendment to the electorate ... may be enjoined at the suit of proper parties in order to avoid the expense of submission, when the amendment, if adopted, would palpably violate the paramount law and would inevitably be futile and nugatory and incapable of being made operative under any conditions and circumstances.
Id. at 425, 131 P.2d at 519 (quoting Gray v. Winthrop, 115 Fla. 721, 156 So. 270, 272 (1934)).
Opponents to the mandamus petition now before us made little or no argument urging that the people of this state have the power to alter the qualifications or term limits of federal offices created by the Constitution of the United States. Not even Congress has the power to alter qualifications for these federal constitutional officers. See Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969).
As this court noted in State ex rel. Santini v. Swackhamer, 90 Nev. 153, 155, 521 P.2d 568, 569 (1974) (quoting 1 Story on the Constitution, (5th Ed. § 627)), "[t]hose officers owe their existence and functions to the united voice of the whole, not of a portion of the people." Further, as Justice Story has observed, "the States can exercise no powers whatsoever which exclusively spring out of the existence of the national government...." Id. Thus, the initiative petition, whether it enacts a law or amends the state constitution, can have no effect on the terms of members of the United States Congress
This point need not be overly belabored. The term limits initiative clearly and "palpably" violates the qualifications clauses of Article I of the United States Constitution. 2 No case authority has been offered in support of the novel proposition that this or any state has the power to impose qualifications for federal office provided for in the United States Constitution. Again, the only question is whether, under these circumstances, the people should vote on a moot issue. 3
Citing our recent decision in Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 802 P.2d 1280 (1990), respondent and the Nevadans for Term Limits ("NTL") contend that this court should decline to determine whether the federal term limits initiative violates the United States Constitution. Our decision in Las Vegas Chamber of Commerce, however, did not overrule our holding in Caine, a holding which has "remained inviolate in an unbroken line of cases that has stood for almost fifty years." Las Vegas Chamber of Commerce, 106 Nev. at 916, 802 P.2d at 1281. To the contrary, this court twice cited Caine with approval in the Las Vegas Chamber of Commerce case. Caine stands today and has stood ever since its issuance in 1942 for the proposition that a ballot question may be enjoined by this court where the question, if enacted, would constitute a "plain and palpable" violation of the United States Constitution and would "inevitably be futile and nugatory and incapable of being made operative under any conditions or circumstances." Id. 61 Nev. at 425, 131 P.2d at 519 (quoting Gray v. Winthrop, 115 Fla. 721, 156 So. 270, 272 (1934)). See also Advisory Opinion to the Atty. Gen., 592 So.2d 225, 229 (Fla.1991) (Overton, J., dissenting in part and concurring in part).
In Las Vegas Chamber of Commerce, this court addressed a ballot question that arguably might have been applied in a constitutional manner. Unlike the ballot question at issue in Las Vegas Chamber of Commerce, the ballot question in the instant case falls squarely into the category of initiative measures defined in Caine which are subject to removal by this court. The question here cannot be implemented in a constitutional manner, and we envision no political utility in burdening an already strapped public fisc with the expense that would inevitably be incurred by placing a meaningless question on the ballot, conducting the election, and tallying the votes. As we noted in Caine:
To deny the jurisdiction of courts in a case of this character, where a plain, palpable violation of the constitution is threatened, would be to concede that irreparable injury, obvious and undisputed, was beyond the restraint of the remedial arm of equity.
Failure of Initiative to Define Nature or Purpose of
As a justice of this court commented at the time of oral argument, "The Our constitution is too sacred a document to be amended by way of an initiative petition that does not mention the constitution and which is framed in terms of an ordinary law, an Act. The initiative petition clearly must fail on this ground alone.
word constitution does not appear," in the initiative petition. There is nothing that would prevent the Secretary of State from drafting the initiative petition's proposals as a statutory enactment rather than as a constitutional amendment. The potential signers certainly were given no indication on the form that they signed that they were urging such momentous action as amending our state constitution. The Nevada Constitution is the fundamental law of our state, and if it is to be amended by an initiative, "potential signers are to be made specifically aware of the solemnity of their act in signing that they may do so with full appreciation of the fact that they are participating in an effort to change the fundamental law, i.e., the constitution of their state." State ex rel. Scott v. Kirkpatrick, 484 S.W.2d 161, 164 (Mo.1972). In Scott, the Missouri State Constitution required the enacting clause in an initiative to state that the constitution would be amended. Our constitution requires that there be an enacting clause stating: "The People of the State of Nevada do enact as...To continue reading
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