A modest proposal to voters facing new choices in wake of state high court’s term limits decision

By Jon Ralston (contact)

Sunday, July 27, 2008 | 2:01 a.m.

“It is a Maxim among these Lawyers, that whatever hath been done before, may legally be done again: And therefore they take special Care to record all the Decisions formerly made against common Justice and the general Reason of Mankind. These, under the Name of Precedents, they produce as Authorities to justify the most iniquitous Opinions; and the Judges never fail of decreeing accordingly.”

— Jonathan Swift, “Gulliver’s Travels”

The great satirist’s disquisition on the legal doctrine of stare decisis, the underpinning of the state Supreme Court’s rationale for upholding term limits, has never been more relevant.

The political impact of the court’s unanimous decision is Brobdignagian — the erasure of the most influential locally elected official of the past quarter-century (Bruce Woodbury) and the concomitant preservation, albeit brief, of the two most important state legislators (Speaker Barbara Buckley and Majority Leader Bill Raggio). But the legal logic, the court’s tenuous invocation of stare decisis or the preeminence of precedents, will be seen by some as Lilliputian.

The state Constitution clearly says that if an initiative such as term limits passes once, it must be resubmitted to voters “in the same manner” as in the previous election — and that clearly did not occur when the same body that had just upheld term limits allowed the 1994 question to be bifurcated in a way that allowed judges to be exempted. Indeed, some might say it is a classic case of black robe disease — not to mention thoroughly disingenuous — for the court to rule that taking the high and mighty judicial branch out of the original amendment in 1996 rendered the question into “a slightly varied format during two successive general elections.”

Slightly varied format? That sound you hear is the ghost of Jonathan Swift applauding the court’s sense of humor.

All these term limits proponents who now praise the court’s decision are some of the same strict constructionist folk who hate it when judges legislate from the bench — and that is exactly what happened here.

Because the 1996 iteration of the high court decided that the split term limits question complied with the “in the same manner” requirement, the current justices ruled, “These decisions now hold positions of permanence in this court’s jurisprudence — precedents that, under the doctrine of stare decisis, we will not overturn absent compelling reasons for so doing.”

Of course there were compelling reasons to balk at that precedent — i.e., the past court simply was wrong on its face because term limits were not passed “in the same manner.” But it will be difficult for anyone to dispute that these elected judges, whose terms can be limited by voters, infused politics as much as the law into their decision Friday.

Indeed, in its decision, the unanimous court all but acknowledged the politics at play:

“Thus as no party has pointed to ‘weighty and conclusive’ reasons for negating the voters’ decade-long expectation that term limits, whenever effective, are a political reality, we will not disturb our prior conclusion that the 1996 term-limit ballot question was constitutionally presented in the ‘same manner’ as it was presented in 1994.”

In other words: Give the voters what they want.

The court’s logic in booting Woodbury and others while allowing the lawmakers serving in 1996 to run one more time is defensible. The Constitution says lawmakers’ terms begin the day after the election and case law decrees that an initiative takes effect the day the balloting is official — Nov. 27, 1996, the relevant year. So anyone sworn in after that date is ineligible, the court ruled.

It’s a sad ending for Woodbury and others, but legally sound. And it is a victory for Secretary of State Ross Miller, who pushed the case, and Attorney General Catherine Cortez Masto, who saw it through.

And yet the consequences remain.

Now that the court has affirmed that voters have a right to disenfranchise themselves — forgive them, elected officials, they really do know what they do — registrars must post signs to inform voters that they should not cast ballots for candidates the court has deemed ineligible. I wonder how many voters who are term limits supporters will be oblivious to those signs and still vote for Woodbury & Co.

Which can’t help but raise another Swiftian suggestion that seems even more outlandish than eating children to relieve a famine — sustenance for a system that is cannibalizing itself. Consider this modest proposal: Pay attention, don’t paint all elected officials with a broad brush and make informed decisions.

Now that would be a precedent worth following.