Justices grill attorney for Legislature: Why wait to challenge term limits?

By Cy Ryan

Monday, July 14, 2008 | 12:51 p.m.

CARSON CITY – Justices of the Nevada Supreme Court grilled an attorney for the Legislature Monday why it waited 12 years to challenge the constitutionality of term limits for state and local officials.

Individual justices indicated they had doubts about the action brought by the Legislature to overturn a vote of the people endorsing term limits.

Justice Bill Maupin told legislative attorney Kevin Powers there is a “very strong presumption of validity” of a constitutional amendment after the voters have approved it twice.

All but one legal challenge to a proposed constitutional amendment has come before the voters decide, not 12 years after, he said.

Powers argued the voters didn’t understand the consequences of the amendment that it applied to all state officials and 127 local boards or commission. And there wasn’t an adequate explanation whether this was a ban for a life time or just to consecutive terms.

Justice Michael Cherry asked what proof did Powers have that the voters were misled. Justice Ron Parraguirre said there would have to be “significant proof” that the voters did not understand the issues before them.

Chief Justice Mark Gibbons said the challenge to term limits by the Legislature “came in late.” The primary election is in a month and sample ballots are now being mailed out. Some clerks said they are getting back mail ballots from over seas.

“It’s been hanging for 12 years and we’re asked to do it in a month,” he said.

Attorney General Catherine Cortez-Mastos, Las Vegas lawyer Dominic Gentile and Georlen Kay Spangler argued in support of the constitutionality of the term limits. Gentile represents Steve Sisolak who is running for Clark County Commission. Spangler is attorney for Kevin Child, a candidate for Assembly in Clark County.

Gibbons said the ruling by the court, whichever way it goes “will have a lasting impact on government.” He said pending cases will have to be set aside to consider this issue and he said those opposing term limits “have the burden of proof.”

After 90 minutes of arguments, the court took the case under submission and has promised an early ruling.

Justice James Hardesty told Powers that the Legislature has the power to seat its own members and yet it comes to the court seeking a decision. He questioned why the Legislature waited 12 years before filing an action in the Supreme Court to overturn the vote of the people. Justice Michael Douglas said this appeared to be the will of the people who voted twice for term limits.

Voters approved the amendment 259,211-108,780 in 1994 and 233,177-196,313 in 1996.

Powers said approval of the term limits will affect some legislative leaders and “removal would cause disruption.” He said the experience of current leaders “is invaluable.”

But Justice Douglas said it was the “prerogative” of the public to choose its legislators.

Cortez-Mastos said the Legislature will continue as a body and anybody can be voted in or out. The argument there would be disruption is without merit, she said and added “Twelve years is an unreasonable delay.”

Gentile told the court the voters passed term limits to put an end to “career” politicians and to end dynasties. The legal action by the Legislature is a “finagle,” said Gentile. The Legislature “laid in the weeds” and just now brought the challenge, he said.

Spangler said the Legislature “slumbered on its rights” for 12 years. If the court reverses the vote of the public, it will be 2024 before any politician could be “term limited.” The public would have to get the issue on the 2010 and 2012 ballots to vote again, she said.

Powers argued the Legislature was not “challenging term limits in general” but the way the issue was presented to the voters. It was improperly placed on the ballot, he said.

There was no explanation it would impact so many local boards such as mosquito abatement boards or weed control commissions, he said.

The questions on the ballot in 1994 and 1996 were different. The constitution requires they be the same, he said. The Supreme Court in 1996 ruled that there should be a separate vote on term limits for judges rather than combining them with state and legislative officials.

That negated the vote, Powers said. But justices argued the question was the same except that the judges were removed from the question. And term limits for judges was placed in a separate question that was defeated at the polls.

There were several questions why the Legislature waited 12 years to launch its challenge. Powers said it was prepared after the 2008 election to bring suit so the question could be answers in an orderly way.

But he said Secretary of State Ross Miller started putting the constitutional amendment into effect, pulling candidates off the ballot.

The constitutional amendment imposes an eight year term limit on state elective officials and 12 years for legislators and some state and local officials.