Two weeks ago, the Nevada Supreme Court ruled that the term limits provision of Article 15, Section 3(2) of the Nevada Constitution bars a person from running for the office of mayor where the mayor is a member of the local governing body and the person running has already served 12 years on the local governing body. The ink was hardly dry on the opinion before columnist Steve Sebelius argued that the Court wrongly decided the case, both in his regular Review-Journal column and on his blog.
Not long after, Jessica Sferrazza, a would-be candidate for the mayor of Reno and a real party in interest in the case, filed a petition for rehearing. Dwight Dortch, the other real party in interest in the case, who also seeks to be Reno’s next mayor, joined in Sferrazza’s petition. In her petition, Sferrazza argues that the Nevada Supreme Court overlooked applicable precedent that requires ambiguous provisions of law that limit eligibility for office be construed in favor of a candidate’s eligibility for office. Under those precedents, Sferrazza argued, the Court must reverse course and decide in her favor.
Petitions for rehearing are usually a long shot. Petitioners areessentially trying to convince the court that just ruled against them to change its mind–not an easy task. Here however, as a sign that there might be something to Sferrazza’s petition, the Court directed the the opposing party to file an answer. Lorton filed his answer and yesterday Sferrazza filed a reply.
In his answer, Lorton does his best to argue that Sferrazza fails to meet her heavy burden to invoke rehearing. That standard is set out in Rule 40 of the Nevada Rules of Appellate Procedure. Basically, in order to be successful on a rehearing petition, the petitioner must show (1) the Court overlooked or misapprehended a material fact or a material question of law in the case or the Court has overlooked, misapplied or (2) failed to consider a statute, procedural rule, regulation or decision directly controlling a dispositive issue in the case. Here, Sferrazza argues that the Court overlooked or misapplied a line of cases that provides when a law that limits a person’s eligibility for public office is ambiguous, the court must choose the interpretation that favors the candidate’s eligibility for office.
I wrote two weeks ago that I believed the Court’s decision was correct. However, I did not seriously take into consideration the case law that recognizes and applies a presumption that requires courts to construe ambiguous eligibility-limiting provisions in favor of a candidate’s eligibility (mostly because I didn’t view the provision to be ambiguous). But now with the Court saying the provision is ambiguous and after reviewing that case law, I think the Court might find itself in quite a predicament.
When ambiguous, let the candidate run
Nevada courts have recognized since at least 1937 a canon of construction that requires a liberal construction in favor of candidate eligibility of provisions that purport to restrict candidate eligibility for office. This principle was first recognized in State ex rel. Schur v. Payne, 57 Nev. 286, 63 P.2d 921 (1937), where the Court, in deciding upon a voter eligibility provision, announced “the right of the people to select from citizens and qualified electors whomsoever they please to fill an elective office is not to be circumscribed except by legal provisions clearly limiting the right.”
The rule has been consistently applied and upheld since then in cases where laws that limit a candidate’s eligibility to run were at issue, most recently and directly in 1994 in State of Nevada Emps. Ass’n, Inc. v. Lau, 110 Nev. 715, 877 P.2d 531 (1994). Since then, the rule has been cited in several cases–whether it was directly at issue or not–in Nevada Judges Ass’n v. Lau, 112 Nev. 51, 910 P.2d 898 (1996) (deciding constitutional attack on term limits initiative petition); Miller v. Burk, 124 Nev. 579, 188 P.3d 1112 (2008) (deciding when 12-year term limit clock began running for candidates); and In re Candelaria, 126 Nev. ___, 245 P.3d 518 (2010) (deciding whether eligibility provision for justice of the peace precluded a candidacy). The Nevada Supreme Court has written nothing to clearly suggest the rule is no longer good law.
My view on this case is this presumption is pretty ironclad. If a court finds ambiguous a legal provision that purports to limit a candidate’s eligibility for office–meaning there are two reasonable interpretations, one where the candidate is eligible and the other ineligible–the court must choose the interpretation that favors candidate eligibility. Applied to this case, the presumption creates quite a problem for the Nevada Supreme Court, in light of its 5-2 decision in Lorton two weeks ago.
Twisted and contorted
In Lorton, a 5-2 majority of the Court found the term limits provision at issue was ambiguous. Slip op. at 9-12. But under the presumption in favor of eligibility for office, the Court’s analysis should have ended there, ruling in Sferrazza’s favor. Instead, the Court went on to discuss legislative history and other extra-textual sources to find the intent of the drafters of the term limits provision. Id., slip op. at 12-18. The Court cited to the case law where the presumption was discussed, but didn’t expressly or implicitly refer to it. On rehearing, the path the Court followed in this case might come back to haunt the five justices in the majority.
Unless the Court can come up with some clever way to distinguish its precedents, it seems the Court would be bound by stare decisis and the rule of law to overrule itself and to rule in Sferrazza’s favor. This, of course, makes it look as if the Court rushed to judgment, which it may have given the opinion was issued only one month after briefing and oral argument were completed. Lorton, to his credit, attempts to distinguish the facts and law in this case, but I think his arguments are weak. I see no reasoned or principled way to distinguish the cases, if you accept that the term limits provision here is ambiguous. Prior cases have applied the presumption when interpreting other term limits provisions in the Nevada Constitution, and it seems to me no reason why the rule should not apply here.
Of course, backed into a corner, it’s possible the Court might do something even more outrageous, like rule that the term limits provision really isn’t ambiguous, and then still rule against Sferrazza. Remember, the presumption only applies if the provision is ambiguous. But this would result in an about-face that is even more shocking than reversing course because the result must change when applying prior decisions that were overlooked.
One final out for the Court might be to find the provision ambiguous but refuse to apply the presumption because doing so would result in absurd outcomes, thus salvaging the prior ambiguity finding and the end result. This will be quite an act of legal contortion if the Court can pull it off.
I don’t believe the provision can be read ambiguously, but a unanimous Court appeared to determine otherwise; the two dissenting justices simply came down on the other side of the interpretation divide. The provision is a specimen of poor drafting, to be sure, but a prohibition on being “elected to any state office or local governing body [if he or she] has served in that office . . . 12 years or more” isn’t ambiguous to me, no matter what you read “in that office” to modify. The term “local governing body” is not an office, to be sure, but it’s rather best understood as a term of art designed to encompass whatever titles of office a local governing body might employ to designate the members of the local governing body. “Local governing body” is a term that encompasses not only city councils but county commissions, improvement district boards, school boards, etc. The history of the term limits provision makes clear why the drafters chose a term of art: it would have been much too cumbersome to list every possible office that was to be included. Justice Pickering’s concurrence I think handles this concept well, when she argues that in Reno the mayor is functionally identical to the other city council members when looking solely at what it means to be a member of the city council (or “local governing body” of Reno).
As I argued in my last post, finding for Sferrazza would essentially let cities play games with definitions, and that would certainly lead to absurd results. If so long as a local governing body is comprised of officers known by different titles and each office had some duties unique to the others, each office would be separate, and thus the 12-year limit would apply to each office separately. This would allow one person a potential 60 years on the same 5-member local governing body. By such reasoning, I would have found that while the term limits provision is capable of two plausible interpretations, the provision is not capable of being understood in two senses by reasonably informed persons, especially since one leads to absurd results, and thus the interpretations are not both reasonable.
Despite my views, the best option is probably for the Court to reverse course only on its holding and rule that because the provision is ambiguous, it must be construed in favor of Sferrazza’s candidacy. Should the voters decide to draft a clearer term limits provision, they will be free to do so. That way the voters can squarely debate whether it matters that the mayor and city council member in some cities are technically different offices or whether it matters only that a person not spend more than 12 years as a member of the same local governing body, no matter the capacity or office the person otherwise holds. It’s entirely possible the drafters never considered that cities throughout the state have different charter provisions regarding a mayor’s status as a full council member.
It’s also possible the drafters didn’t think the distinction mattered. As it stands now, the term limits provisions of the Nevada Constitution do not expressly prevent persons from serving in local offices (other than on the local governing body) for more than 12 years. That means mayor, city attorney, sheriff, city attorney, or any other elected local officer is not subject to term limits. That seems inconsistent with the state constitution’s imposition of term limits on state executive officers. Thus, if the the voters are dissatisfied with the Court’s judgment, they should squarely address it by proposing amendments to the term limits provision.
Personally, I find term limits antithetical to representative democracy. I subscribe to the late Sen. Bill Raggio’s school of thought on term limits: we already had term limits–they’re called elections (leaving unanswered for now whether our electoral system creates a level playing field for all candidates).
Those of us who love to follow these kinds of cases, where politics intersects with the law and the constitution, will be waiting anxiously for a final ruling from the Court. Under NRAP 40, the Court can decide without further argument or briefing or can essentially restore the case to its status before argument and allow additional briefing and argument. Given that the candidate filing period is already open and closes on March 14, I doubt the Court will choose a path that will cause much more delay. Imagine the mess if a final decision doesn’t come down until after filing closes.