Precedent may trump politics on term limits

By David McGrath Schwartz (contact)

Sunday, July 13, 2008 | 2 a.m.

Carson City — State Supreme Court justices filed into their chambers this month to hear arguments before an audience packed with much of Nevada’s lawyerly elite about how to enforce Nevada’s term limits.

Chief Justice Mark Gibbons said the matter was of the utmost importance. The court had virtually cleared its schedule, and would make a ruling in a matter of weeks after the final hearing.

The session was just a warm-up.

On Monday, the Nevada Supreme Court will hear oral argument on the constitutionality of term limits, which were passed by voters during the Republican Revolution days of the 1990s and were to start taking effect this political season.

The case has become known as The Big One, the big challenge of term limits that will set the boundaries of Nevada’s political field.

Trying to gauge the chief justices is dicey. But many observers think the high court will preserve term limits. Forget the very real, if cynical, argument that judges have to face election just like other politicians and that voters might revolt if the court throws out term limits.

Much more relevant is a court’s reluctance to reverse itself. And make no mistake, a main argument being used to try to upend the term limits is that the state Supreme Court messed up in 1996.

How did we get here?

In 1994, voters approved a constitutional amendment to limit elected officials to 12 years in office. The same initiative limited judges to two terms.

A change to the constitution must be passed twice by voters “in the same manner,” according to the constitution.

After the measure passed in 1994, the Nevada Judges Association looked at the initiative, and did not like what was coming. So it sued. And won.

The Nevada Supreme Court did not take term limits off the ballot for 1996, however. But the court said the ballot language was misleading to the voters when it came to how judges would be affected.

The original petition voters passed in 1994 laid out the number of years a legislator or local official can hold office (12). For judges, the initiative said only that judges would be limited to two terms. Given that judges can, in some circumstances, be appointed to vacant posts and then face an election two years later, some judges could serve just three years before being “limited out.”

“We have the real concern that a casual reader will not understand that the proposed limits apply to judges and not just to officers elected to the political branches of government,” said the Supreme Court’s 1996 decision. “Some voters who want term limits for ‘politicians’ may actually prefer a career judiciary.”

The Supreme Court ordered the ballots changed for the second statewide vote in 1996. The 1994 results would stand. But instead of one question, voters would face two: one for judges and another for all other offices.

What ensued was, perhaps, expected. Lawyers, judges and the casino industry contributed hundreds of thousands of dollars to a campaign to defeat limits for judges. They won. The question failed.

But the nationwide wave of term limit fervor helped carry the issue for all other elected offices. Voters ratified their 1994 call for a 12-year cap.

The members of that 1996 Supreme Court are now off the bench. But the effects of their decision are now before a new Supreme Court.

Observers think a reversal is unlikely. But keep in mind a lone dissent in that 1996 ruling. Then-Justice Miriam Shearing argued that if the 1994 initiative was defective, the issue could not be resolved simply by splitting it into two questions in 1996.

Rather, Shearing said, voters would have to start over and pass both questions twice.

If the current court now agrees, it could kick the rusty can down the road for another dozen years.