Candidate for judge may set precedent

Michael Montero didn't lie. He was running for judge in Winnemucca, but he lived in Reno.

Acting on a citizen's complaint, the state attorney general's office took Montero to court for violating the legal requirement that candidates live in their districts.

But a Washoe County District Court judge ruled for Montero last month, setting on its head the long-held understanding of the legal requirements for judicial office. The result, observers of the case say, could have wide implications for the judiciary and possibly for other elected offices.

The attorney general's office has until April 30 to appeal the ruling. If the ruling stands, it would seem to allow state judges to live anywhere in the state. Someone could be a judge in Las Vegas, for example, and live in Pahrump or Elko.

Montero said he didn't intend to set a precedent or open the door to other consequences.

"I plan to live in the district," he said. "I have no plan to be a judge in Winnemucca and live in Reno. But the way the statute was being interpreted was that I had to live in the district for 30 days prior to filing. I didn't interpret the statute to mean that."

A blanket provision in Nevada statute says candidates for office must live in the districts they want to serve 30 days before they file their candidacy paperwork.

The attorney general's office took that to mean that a candidate for one of the state's nine judicial districts should reside in that judicial district. No one had ever challenged that reading of the law.

In Montero's case, the Sixth Judicial District that he hoped to serve covers Humboldt, Lander and Pershing counties. Winnemucca, where the court is based, is in Humboldt County, about 170 miles northeast of Reno on Interstate 80.

"No person may be a candidate for the office of District Court Judge in the Sixth Judicial District unless he has, for at least 30 days immediately preceding the date of the close of filing of declarations for candidacy ... resided in the district to which the office pertains," states the legal petition brought in Washoe County District Court by Senior Deputy Attorney General Nhu Nguyen in February.

"In his Declaration of Candidacy, Montero affirms that he is an actual resident of ... Reno, Washoe County since at least December 18, 2007, which is not in the Sixth Judicial District."

It seemed simple. But Montero argued that it depends on what the definition of "district" is.

In the case of a district court judge, "the district to which the office pertains" is the entire state, not the judicial district that elects the judge, he argued.

The residency statute, NRS 293.1755, which covers all offices, including judges, calls for residency "in the state, district, county, township or other area prescribed by law to which the office pertains and, if elected, over which he will have jurisdiction or which he will represent."

District court judges, Montero noted, are defined by statute as "state officers." They don't represent a local constituency, and although they principally hear cases from their judicial districts, they have statewide jurisdiction. Therefore, the district in which judges must live is the state of Nevada, he argued, and there's no dispute that Montero lives in the state.

That interpretation made sense to Washoe County District Judge Patrick Flanagan. On March 31, he issued his ruling.

"The position of District Court Judge is one of a state officer," Flanagan wrote. "No constitutional or statutory requirement exists that requires Mr. Montero, or any other candidate for district judge, to maintain their physical residence within the judicial district to which they seek such office."

Flanagan ordered that Montero be listed on the ballot for the Sixth Judicial District.

Flanagan's office said last week that the judge could not comment on his ruling.

Nicole Moon, spokeswoman for the attorney general's office, wouldn't comment except to say that the ruling was counter to the office's understanding of the law. She said the office was evaluating the ruling and deciding whether to appeal it to the state Supreme Court.

A source familiar with the case said the attorney general's office does plan to appeal.

The ruling was perplexing to Dee Holzel, the Winnemucca activist who filed the original complaint about Montero's candidacy with the secretary of state's office. That office investigates election-related complaints and forwards them to the attorney general if it believes them to have merit.

"It was my understanding that if you want to run here, you have to live here," Holzel said. "The law is so clear. It's in the statutes, it's in the constitution. You have to live in the district. I thought it was an open-and-shut case."

The section of the Nevada Constitution that empowers the judiciary, Article 6, Section 5, divides the state into judicial districts, and it states: "The district judges shall be elected by the qualified electors of their respective districts."

Holzel sees trouble ahead if the Montero ruling is allowed to stand.

"I have to wonder about the implications of the ruling," she said. "It could have some really strange implications for all the offices. Let's say you want to run in another district for state Senate, but you live somewhere else. You could reference this ruling as a precedent."

Montero said he didn't think the ruling in his case would affect other offices. The statutes that define qualifications for other state offices, such as university regent, state board of education member or state legislator, all specifically call for residency, he said.

NRS 396.040, for example, states, "Each member of the Board of Regents must be a resident of the district from which he is elected." NRS 218.055 states, "Each Senator and Assemblyman must be elected from within the district wherein he resides by the registered voters residing in that district."

In the statute that defines judges' qualifications, however, there's no residency requirement. NRS 3.060 requires judges to be at least 25 years old, licensed attorneys in Nevada who have been lawyers for at least 10 years, residents of the state for at least two years, and they must never have been removed from judicial office.

Montero has roots in Humboldt County. He grew up on his family's Leonard Creek Ranch, which has been in operation since 1918, and is president of the family business, the Pine Forest Land & Stock Co. It was incorporated in 1923, and he believes it to be the oldest continuously operated corporation in Nevada.

Montero even has a home on the ranch, but he doesn't live there full time. If elected to the judiciary, he would move there, he said.

After attending high school in Winnemucca, Montero went out of state for college and law school. As his legal brief puts it, "To the eternal pride of his iconic father, Frenchy Montero, and the rest of his large, extended family, Michael attended undergraduate school at Eastern Oregon University and was graduated from the law school at Washburn University in Topeka, Kansas in 1996."

After law school, Montero moved to Reno, where he did insurance defense work for about 10 years and for the past two years has been in personal-injury practice.

The Sixth Judicial District seat is being vacated by Judge John Iroz, who is not running for re-election. Montero said he would not have run against Iroz and only learned the seat would have no incumbent during the January filing period for judicial candidates. That's when he made the decision to run; he didn't have time to change his residence.

"My feelings are that this is a decision that should be left to the voters of the district," he said. "If the voters of Humboldt, Pershing and Lander counties don't feel like I have enough connections with the people and issues important to them, they're going to tell me that by not voting for me."

Four other candidates are running for the seat. All live in the judicial district -- two in Winnemucca, one in Lovelock and one in Battle Mountain.

One of the candidates, Winnemucca private lawyer Bob Dolan, said it has always been his impression that judges are required to live in their judicial districts before they file. If that's not the case, the Supreme Court should say so definitively, he said.

"If the rule is that a person from Clark County can run to be a judge in Humboldt County, then it's time for a clear statement from the Nevada Supreme Court to be made on that point," Dolan said.

"It makes sense to me that the public officials who serve a particular district reside in that district. If the rules say otherwise, fine, but let's make sure everyone knows the rules of the game."

Contact reporter Molly Ball at mball@reviewjournal.com or 702-387-2919.