Williams v. Clark County Dist. Atty.

• Citation: 118 Nev. 473,50 P.3d 536
• Decision Date: 25 July 2002
• Docket Number: No. 39897.,39897.
• Parties: Kevin Michael WILLIAMS, Appellant, v. CLARK COUNTY DISTRICT ATTORNEY, Stewart L. Bell; James A. Ferrence; Myrna Williams; and Nevada Stupak, Respondents.
• Court: Nevada Supreme Court

50 P.3d 536

118 Nev. 473

Kevin Michael WILLIAMS, Appellant, v. CLARK COUNTY DISTRICT ATTORNEY, Stewart L. Bell; James A. Ferrence; Myrna Williams; and Nevada Stupak, Respondents.

No. 39897.

Supreme Court of Nevada.

July 25, 2002.

As Corrected July 26, 2002.

Michael Stein & Associates, Ltd., Las Vegas, for appellant.

Stewart L. Bell, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark County, for respondent, Clark County District Attorney, Stewart L. Bell.

Dominic P. Gentile, Ltd., Las Vegas, for respondents, Myrna Williams, James A. Ferrence.

Nevada Stupak, Las Vegas, in proper person.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM.

In this appeal, we examine the statutory residency requirements for the office of county commissioner as well as the requisites for sustaining a residency challenge. Because we conclude that the district court properly allowed the challenge and correctly determined that the statutory residency requirements were not met, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 20, 2002, appellant Kevin Michael Williams filed a declaration of candidacy for the office of County Commissioner, Clark County District E. In his declaration, he stated that his actual residence was 3950 Koval Lane, Apt. 3018, in Las Vegas, Clark County, Nevada, and that, as required by statute, his residence began on a date at least thirty days immediately preceding the closing date for filing candidacy declarations.

Candidacy registration for the county commissioner office closed on May 20, 2002. On June 6, 2002, James Ferrence filed an affidavit with the election department, stating his belief that Williams did not reside at the address under which he filed for office. Ferrence is a principal with an advertising company that represents the current District E County Commissioner, Myrna Williams. While Ferrence attached no documentation to his affidavit, on June 12, 2002, he provided a second affidavit by a private investigator, David Groover.

On June 13, 2002, the district attorney filed a petition in the district court for an order to show cause regarding the validity of Williams' candidacy under NRS 293.182(4), based on the residency issue. Williams owns a house in Henderson, Nevada, in which he lived full-time until April 2002, when he apparently moved, on a part-time basis, to the Koval Lane apartment. The Koval Lane apartment is located in District E, but the Henderson house is not.

The district court entered an order directing Williams to show cause why Ferrence's challenge was not valid, and set the matter for an evidentiary hearing. Williams filed a response to the show cause order and a motion to dismiss the petition on the basis that it was untimely. Myrna Williams then filed a response to Williams' motion to dismiss. After conducting an evidentiary hearing, the district court entered an order sustaining the challenge to Williams' candidacy under NRS 293.182, and directed the Clark County Registrar of Voters to remove Williams' name from the September 2002 ballot. The district court concluded that the Koval Lane apartment address identified in Williams' declaration of candidacy was not his legal address and that he did not live in the commission district for which he filed. Williams filed this appeal.

We conclude that the challenge was timely under NRS 293.182(1), that the challenge substantially complied with the procedural requisites of NRS 293.182(2), and that, as a matter of law, the address stated in Williams' declaration of candidacy failed to meet the statutory actual residency requirements. Accordingly, we affirm the district court's order.

DISCUSSION

Timeliness of challenge

Williams first contends that Ferrence's challenge to his candidacy was untimely because it was not filed within the five-day period provided in NRS 293.182(1). NRS 293.182(1) allows a voter to file a written challenge to a candidate's qualifications not later than five days after the last day the candidate may withdraw his or her candidacy:

After a person files a declaration of candidacy or an acceptance of candidacy to be a candidate for an office, and not later than 5 days after the last day the person may withdraw his candidacy pursuant to NRS 293.202, an elector may file with the filing officer for the office a written challenge of the person on the grounds that the person fails to meet any qualification required for the office pursuant to the constitution or a statute of this state, including, without limitation, a requirement concerning age or residency.

Under NRS 293.202, a candidate may withdraw his or her candidacy for office in writing "within 7 days, excluding Saturdays, Sundays and holidays, after the last day for filing." NRS 293.177(1) provides that the last day a candidate can file a declaration for candidacy is the third Monday in May at 5:00 p.m.

Applying these deadlines to this case, the third Monday in May fell on May 20, 2002, and so the last day for Williams to withdraw his candidacy was Thursday, May 30, 2002. Thus, a written challenge to Williams' qualifications under NRS 293.182 was due five days after May 30, 2002. The parties dispute whether this five-day period excludes Saturday, Sunday, and non-judicial days from its calculation. If we apply a straight five-day period, as Williams argues, then the deadline for filing a challenge fell on Tuesday, June 4, 2002. If, on the other hand, Saturday, June 1, and Sunday, June 2, are excluded from the five-day calculation, as Myrna Williams argues, then the last day for filing a challenge fell on Thursday, June 6, 2002. Because Ferrence's challenge was filed on June 6, 2002, how the five-day period is calculated determines whether the challenge was timely.

We conclude that Saturday, Sunday, and non-judicial days are excluded from the five-day calculation under NRS 293.182(1). The construction of the five-day time period in NRS 293.182(1) is a legal question, subject to independent appellate review.¹ We have previously held that when a statute does not specify how to compute a particular time period, NRCP 6(a) governs the computation.² In fact, NRCP 6(a)'s express language provides that when a statute's time period is less than seven days, then Saturdays, Sundays, and non-judicial days are excluded from the computation.

In Rogers v. State,³ we applied NRCP 6(a) to calculate the time under a statute requiring tort claims against the state to be brought within six months (NRS 41.036). More importantly, however, we overruled Kirk v. Parsons,⁴ a 1960 election case in which we had refused to apply NRCP 6(a) to an election statute that required a candidate, who desired to contest another candidate's nomination, to proceed within five days after completion of the canvass.⁵ We stated that Kirk was wrongly decided because the special election law referenced in Kirk did not specify how to compute the time.⁶ Here, by analogy, NRS 293.182(1) does not specify how to compute the five days, and thus NRCP 6(a) applies. We are mindful that NRS 293.182(4) gives the district attorney "5 working days" after receiving the challenge to petition the district court to order the candidate's court appearance, and that our interpretation of "5 days" in section 1 renders superfluous the word "working" in section 4.⁷ However, when the legislature adopted NRS 293.182(1) in 2001, it used the same "5 days" language we had previously construed in the context of the former election statute in Kirk and Rogers. It is reasonable to assume that the legislature was aware that we applied NRCP 6(a) in calculating the time period, and employed its language in a consistent manner.⁸ Thus, we conclude that NRCP 6(a) applies to exclude Saturday, Sunday, and non-judicial days from the five-day calculation under NRS 293.182(1), and Ferrence's June 6, 2002 challenge was timely.

Compliance with procedural requisites of NRS 293.182(2)

Williams next contends that Ferrence's challenge was insufficient under NRS 293.182(2) because Ferrence's June 6, 2002 affidavit merely stated his belief rather than his personal knowledge that Williams did not reside at the address listed in his declaration of candidacy. Williams further contends that Ferrence failed to attach any supporting documentation or evidence to his affidavit as required by the statute. Although, on June 12, 2002, Ferrence submitted the private investigator's supporting affidavit, Williams argues that the submission was untimely.

NRS 293.182(2) requires that a challenge must indicate the qualification(s) the candidate fails to meet, have attached all documentation and evidence supporting the challenge, and be in the form of an affidavit. First, it is questionable whether Ferrence's affidavit was sufficient, as it was based on belief rather than personal knowledge. NRS 293.182(2) is silent as to whether it permits affidavits on information and belief or requires the affidavits to be based on personal knowledge.⁹ Other courts have permitted affidavits on information and belief when the facts would otherwise be difficult or impossible to establish.¹⁰ Here, however, facts pertaining to Williams' residency at the Koval Lane apartment were not impossible to establish, as demonstrated by the private investigator's affidavit detailing the investigator's attempts to connect Williams to the Koval Lane apartment.

Even assuming that Ferrence's affidavit alone was insufficient, we conclude that Ferrence substantially complied with the statute by supplementing his affidavit with the private investigator's.¹¹ The private investigator's affidavit provided detailed information about his unsuccessful attempts to reach Williams at the Koval Lane apartment and his research revealing no connection between Williams and the Koval Lane apartment in the public record.

Ferrence did not attach the private investigator's affidavit to his own affidavit, but submitted it six days later. While NRS 293.182(2) contemplates that...