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Sunday, August 05, 2001
Copyright © Las Vegas Review-Journal

Term limits

Lawmakers may be serving illegally

How did it happen that 18 members of the 2001 Legislature took office in violation of the Nevada constitution and compromised every law that was passed, amended and repealed?

This simple and clear sentence was placed in the state constitution in 1996 by overwhelming vote of the people in two elections: "No person may be elected or appointed as a [senator or member of the Assembly] 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, from any district of this state."

These words of Article 4 of the Nevada Constitution were precisely crafted to make no mistake about what happens to incumbents who have served, or "will have served," 12 years or more by the time the provision went into effect. Just more than four years after it went into effect, 10 of the 21 members of the Nevada Senate and eight members of the Nevada Assembly took office in violation of it. The 2001 session of the Legislature was incurably compromised by 18 unconstitutional legislators.

In 1998, Bill Raggio, a Republican, was elected to serve his 25th, 26th, 27th and 28th years in the Senate. In 2000, Assemblyman Joe Dini, a Democrat, was elected to serve his 33rd and 34th years in the Assembly. The other unconstitutional senators were Joe Neal (28 years), Lawrence Jacobsen (22), Randolph Townsend (18), Ann O'Connell (16), Ray Rawson (16), Dean Rhoads (16), Ray Shaffer (16), Bill O'Donnell (14) and Bob Coffin (14). The other unconstitutional members of the Assembly were Bob Price (26), John Marvel (22), David Humke (18), Morse Arberry (16), John Carpenter (14), Wendell Williams (14) and Vivian Freeman (14).

Altogether 10 Republicans (seven in the Senate) and eight Democrats (five in the Assembly) constituted the unconstitutional contingent of the century's first legislative session. The same 10 Republicans plus nine Democrats are ineligible to run in 2002.

How did this happen? Attorney General Frankie Sue Del Papa is responsible for enforcing the law in Nevada. Until recently, Del Papa was considering running for a fourth term in violation of Article 5 of the Nevada Constitution. Secretary of State Dean Heller, the chief elections officer of the state, may still be looking forward to running for his third term, equally in violation of Article 5.

The two-term limit of Article 5, which went into effect in 1996 as the result of the same vote of the people that enacted the 12-year limit for legislators, states: "No person may be elected [as secretary of state, controller, treasurer, or attorney general] more than twice, or more than once if he has previously held the office by election or appointment."

Right after this went into effect, twice-elected Frankie Sue Del Papa announced by way of an official attorney general opinion that the limitations are ambiguous. They don't tell us, she said, "when to start counting the terms."

But that's exactly what they do. A legislator who, "at the expiration of his current term if he is so serving will have served, 12 years or more" may not be elected again. No ambiguity here.

"No person may be elected [as attorney general, secretary of state, controller, or treasurer] ... more than once if he has previously held the office by election or appointment." No ambiguity here, either. This was precisely crafted to leave nothing to chance and was aimed squarely at someone in Del Papa's position. If you have previously held the office, for no matter how many terms -- one or 20 --you may be elected once more, and once more only.

But according to Del Papa, term limits for legislators would not go into effect for another 12 years, and for state officers such as herself, not for another 10 years, later. This would come as a great surprise to those who voted for the initiative or to anyone who has ever read it.

Del Papa argued that, since the term limit laws don't tell us what to do with incumbents, applying the 1996 term limits to an election six years later would be improperly retroactive. The notion is not only mindless and in contradiction to what we experience as the forward progression of time, but has been rejected by the U.S. Supreme Court for more than 70 years. Our own Nevada Supreme Court has seen through this nonsense. Exactly like the law that increases the penalty for a third domestic battery, the term limit laws take into account past events or present status, but are sought to be applied to the next event, not the last one.

The last-ditch "poor me" argument (what the law calls "detrimental reliance") is that one wouldn't have run for the prior terms if one had known that one wouldn't be eligible indefinitely. Not even the Nevada Supreme Court could say this with a straight face. There are no term limits on judges, by the way.

Her fellow Democrats shouldn't be too happy with Del Papa. Seven of the 10 ineligible senators were Republicans, including the Democrats' arch nemesis, Majority Leader Raggio.

One-half of the state Senate and one-fifth of the Assembly in the session of 2001 passed, amended and repealed the laws of this state in violation of the clearest terms ever written into the Nevada constitution.

No one will ever know how it might have been different.

Chuck Gardner, a former deputy attorney general, is a Las Vegas attorney.