Lawyer asks justices to apply term limits to district attorneys

CARSON CITY -- When Nevadans went into the voting booths in 1994 and 1996, they assumed they were voting for term limits for district attorneys and many other elected officials, a lawyer told the Supreme Court on Wednesday.

Las Vegas lawyer Bradley Schrager argued that because voters approved the term-limits amendment, district attorneys such as Arthur Mallory in Churchill County should not be permitted to hold office any longer.

"Put yourself in the booth with the voters," Schrager asked justices, adding that 1994 and 1996 "were a high anti-incumbent time."

The term-limits provision limits state senators, Assembly members and local governing officers to 12 years in their offices. State constitutional officers are limited to two terms.

Mallory, however, last year won his fourth, four-year term as district attorney, and Fallon resident Frank O'Connor filed litigation challenging his right to serve another term.

Justices did not indicate Wednesday during a half-hour hearing what should be done with Mallory or other district attorneys who have served longer than 12 years if the court rules in O'Connor's favor. But justices' questions made it clear they are struggling to find an equitable solution.

"How do we deal with this?" Justice Michael Douglas asked. "We don't know what individual voters thought."

The court is not expected to issue a decision for several months. If Schrager and O'Connor are right, the Supreme Court could be forced to oust several long-standing district attorneys.

Six veteran district attorneys, including Washoe County's Richard Gammick, attended the hearing. Gammick has been district attorney since 1995.

Schrager, who has handled several ballot-initiative cases, was assigned earlier by the court to represent O'Connor, a nonlawyer who had prepared the original lawsuit against Mallory.

In his argument Wednesday, Schrager noted the ballot question approved by voters called for term limits for "state officers" and "local governing officers" and for legislators and state constitutional officers.

While there may be some ambiguity, Schrager said, district attorneys at least sometimes are considered state officers.

He said that if he wrecked a hotel room, the local district attorney would file a lawsuit against him that would be listed as "the state versus Bradley Schrager."

At least three times previously, he added, the Supreme Court itself has called district attorneys state officers.

And the Supreme Court in Alaska found that "the meaning voters attached" to a vote on a ballot question should prevail if there are questions of ambiguity, he said.

"Voters should get what they asked for," Schrager said.

But Justice Mark Gibbons noted that district attorneys are paid by counties, not the state.

And lawyer Robert Eisenberg, representing Mallory, said there are at least five instances in state law in which district attorneys are referred to as county, not state, officials.

Eisenberg also mentioned a 1940 state Supreme Court decision that found "the vote of the people should not be overturned."

If there is any ambiguity about the intention of the term-limit ballot question, it should be "resolved in favor of the officeholder," Eisenberg said.

In the 1990s, he added, the attorney general's office issued an opinion on which officials would be term-limited.

That opinion said that local "governing" officers such as city council members and county commissioners would be limited to 12 years in office.

But because district attorneys, sheriffs, clerks, recorders and other officials do not have governing authority, they would not be term-limited, according to the attorney general's opinion.

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3901.