Henderson mayor potentially in jeopardy
Well, when I started this blog back in February 2013, I warned that posts would be infrequent, and it was possible I’d mothball the blog. Well, something of note happened today warranting taking the blog out of mothballs and the first post since June 2013.
Today, the Nevada Supreme Court, in a 5-2 decision authored by Justice Hardesty, ruled a constitutional provision imposing a 12-year term limit on members of a “local governing body” applies to the office of mayor where the city charter makes the mayor a member of the city council. The case is Lorton v. Jones, 130 Nev. Adv. Op. No. 8 (Feb. 20, 2014). Immediately, this means the candidacies of Dwight Dortch and Jessica Sferrazza to be Reno’s mayor are now kaput because the two of them have previously served 12 years on the city council. The ruling might also provide a sword to challenge the continued incumbency of Henderson Mayor Andy Hafen, who was recently re-elected but under the Court’s ruling may now be ineligible to hold office.
Article 15, Section 3(2) of the Nevada Constitution states “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.” The Court determined that because the Reno City Charter makes the mayor of Reno a member of Reno’s local governing body (the city council), the Article 15, Section 3(2) bars a term-limited council member from thereafter being elected mayor.
In reaching its conclusion, the Court determined that Article 15, Section 3(2) is ambiguous when it refers to “that office” in relation to “state office” and “local governing body.” Id., slip op. at 9-12. Because the provision is ambiguous, the Court could resort to extrinsic aids, such as context, the purpose and public policy underlying the constitutional provision, the history of the initiative that created the constitutional provision, and related constitutional and charter provisions, to help interpret it. Id., slip op. at 12-18.
Opponents and the dissent argued that the office of mayor is sufficiently distinct from a council member to be a separate office from that of member of a local governing body. The Court disagreed, finding the Reno mayor even with some differing responsibilities is not “divest[ed] . . . of his or her full and equal membership on the city council.” Id. at 17.
Justice Pickering, concurring in the majority opinion, wrote separately primarily to respond to the dissent. She argued that the dissent overly relied on dictionary definitions of “office” and “local governing body” and did not “adequately consider the meaning these words have in the context of Article 15, Section 3.” Id. (Pickering, J., concurring, at 1).
The dissent, written by Justice Saitta and joined by Justice Parraguirre, focused entirely on dictionary definitions of “office” and “local governing body,” and found that the mayor of Reno is a different office from member of the local governing body. Because of that, the dissent argues the term limits provision does not apply to the mayor because the “mayor is elected to the office of mayor, not to the office of city council member.” Id. (Saitta, J., dissenting, at 3). The dissent argues the “that office” language makes the term limits provision office-based, rather than body-based, as the majority holds.
I think the Court’s result is correct and does the least violence to the spirit of the term limits provision. If the dissent carried the day, cities could play too many definitional games to evade the term limits provision. Imagine a city charter that comprises its 5-member city council with “ministers,” each of whom have administrative or executive authority over some area of city government, such as minister of parks and recreation, minister of public works, minister of public safety, etc. Each member would have duties and responsibilities unique from every other member of the city council, thus making each minister position a separate “office.” Under the dissent’s reasoning, a person could conceivably serve 60 years on the council simply by swapping to a different “office” every 12 years, effectively evading the “local governing body” language.
The majority opinion is appealing for another reason: cities that have defined their mayors as a member of the city council can simply amend their charters to remove the mayor as a member of the council, like is the case in Sparks, as the majority opinion noted. Id., slip op. at 18; Sparks City Charter, Art. III, § 3.010(1)(b). I don’t think cities would have to go so far as Sparks has and abandon the mayor-manager system of city governance in favor of mayor as chief executive. It should suffice to relegate mayors to much the same role the lieutenant governor has in the state senate. The lieutenant governor presides over the Nevada Senate and he is allowed a casting vote (a vote when the Senators are tied), but he is not a member of the Senate. Nev. Const. art. 5, § 17. So long as the mayor is deprived of all other legislative powers (the ability to introduce bills, to debate, and to vote on all questions before the council), I think this would make the mayor sufficiently different from a council member to no longer be considered a member of the local governing body for term limits purposes. I expect we’ll see some bills in the 2015 legislative session to do just that, and maybe (we can dream) a special session to try to fix this issue before the 2014 elections.
The constitutional term limits provision is, admittedly, not a model of clear drafting. The Court’s opinion does not avoid that finding and deals with interpreting and construing the provision in a reasonable fashion, and I think the majority has arrived at the most reasonable and desirable outcome in this case.
Imprecision is a byproduct of constitutional amendments by initiative. Legislation by initiative is, in my view, more susceptible of leading to inconsistent, confusing results than is legislation by an elected legislature. An irony of this case is other than for members of a local governing body, local officers (e.g., a mayor who is not a member of the local governing body, an elected city attorney, an elected city clerk, etc.) are not subject to any term limits provisions in the Nevada Constitution. So the Sparks mayor, for example, could hold office for as long as the voters will re-elect the mayor. Is this the result the drafters of the 1994 and 1996 term limits initiative intended? Perhaps. Perhaps not.
What about mayors who have been elected but were already term-limited?
The Court’s opinion today leaves unresolved what to do with mayors who already served 12 years as a council member but were nonetheless elected mayor. This specifically affects Henderson Mayor Andy Hafen, who had already served 12 years on the Henderson City Council when he was elected mayor. He was recently re-elected in 2013. Henderson’s Charter makes the mayor a member of the city council, just like in Reno. Arguably, Hafen was never eligible to be elected because Article 15, Section 3(2) of the Nevada Constitution barred his election.
To challenge the eligibility of an incumbent public officer to hold office, a person would file a complaint for a writ of quo warranto. Chapter 35 of the Nevada Revised Statutes governs these actions. I’ve written about quo warranto actions before, in the context of a case brought by NPRI to prevent State Senator Mo Denis from serving both in the legislature and holding a job in the executive branch. (Thanks to @TKTaycher for reminding me about my post.) That case is still on appeal to the Nevada Supreme Court, awaiting a decision of whether the Court has jurisdiction to consider the appeal when Sen. Denis left the executive branch job, thus possibly making the appeal moot.
If a writ of quo warranto was sought against a mayor who was already term limited when elected as mayor, I think it’s possible such a petition would be successful. The problem, however, might be finding a plaintiff who has standing. NRS 35.030 confers standing on the Attorney General to bring such an action. But if the Attorney General declines, you’d have to find a private plaintiff with standing. A private plaintiff, such as a Henderson resident or taxpayer, would not have standing. To have standing, one would have to fairly claim an entitlement to the office over a term-limited mayor, and such a person might not exist because the mayor presumably won election, and by definition two people cannot win the same election.
Although the Court’s decision today instantly blew wide open the race for mayor of Reno, its effects on other term-limited mayors may be limited until the next election. It’s possible the courts would not apply the Lorton decision retrospectively. Generally, though, a court decision is merely deciding the state of the law as it existed when the law in question was adopted. But the retrospective or prospective application of judicial opinions is a complex area of law that could affect all of this. Regardless, it will be worth watching whether anyone tries a quo warranto action to oust term-limited mayors. If someone does, you’ll read about it here, unless I put the blog back into mothballs for several months again.