Regent bucks term limits

CARSON CITY -- University system Regent Howard Rosenberg said Monday he might challenge the Nevada Supreme Court decision that prevents him and 20 others from running for re-election.

While acknowledging his lawyer, Byron "Bill" Bilyeu, advised him against taking the term limits case to federal court, Rosenberg said he is "so angry I could kill" over the decision on term limits.

"I honestly don't know at this point what I will do," said Rosenberg, who represents the Reno area on the Board of Regents. "Money is a major factor. I am a teacher, and I am 74. But I might dip into my reserves I am so mad."

Matt Griffin, deputy secretary of state, said the challenge contemplated by Rosenberg would go directly to the U.S. Supreme Court.

But he noted that the high court rarely takes cases that deal with state constitutional issues.

The U.S. Supreme Court also does not begin business until October. Even if it heard Rosenberg's case, it wouldn't likely make a decision until long after the November election.

When told of Griffin's view, Rosenberg said it would be unfair if the U.S. Supreme Court ordered the state to remove whoever is elected to fill his seat in November.

But he said he relied on opinions from former Attorney General Frankie Sue Del Papa, the Legislative Counsel Bureau, Bilyeu and others that he could seek another term this fall.

"I see (what the state Supreme Court did) as the antithesis of the constitution and democracy," Rosenberg said. "They have thrown the election into a flux. People are calling me and saying, 'Why can't I vote for you anymore, or for Woodbury and Dondero?' "

The state high court ruled Friday that 21 elected officials, including Clark County Commissioner Bruce Woodbury, Regents Thalia Dondero and Rosenberg, and Clark County School Board members Mary Beth Scow and Ruth Johnson, cannot run for those offices again because a state constitutional amendment that went into effect in 1996 limits them to 12 years in office.

Woodbury and Dondero announced earlier they would not challenge the state Supreme Court decision.

Dondero, like Rosenberg a regent since 1996, said Friday she could not afford to challenge the decision.

"I don't have that kind of money to spend," she said. "So that's it."

Scow and Johnson said they have no plans to challenge the decision.

Minden Town Board member Raymond Wilson offered the same reason as why he will not contest the decision.

"It could easily be challenged, but I don't have the money," said Wilson, a Town Board member for 24 years. "If I did, I would challenge it and win."

Wilson said he cannot understand why "little guys" like him are being turned out because of term limits.

Wilson said any decision by his board is not effective unless also approved by the Douglas County Commission.

Harold Newman said he finds it "ridiculous" that the state Supreme Court term-limited him out of his position as chairman of the Churchill County Mosquito and Weed Abatement District Board in Northern Nevada.

During his 20 years on the board, Newman said he often could not find enough people to serve with him on the five-member board.

"We don't make any laws," he said. "We make sure they have equipment so people don't get West Nile virus."

Newman said he does not have the money or even know how to challenge the decision.

In a nonbinding opinion three months before term limits received final approval, Del Papa said the constitutional amendment would not affect candidates elected in 1996.

That meant Rosenberg, Dondero, Woodbury and other local elected officials could seek final terms in the 2008 election.

Despite Friday's decision blocking the incumbents from running again, the state Supreme Court also ruled Assembly Speaker Barbara Buckley, D-Las Vegas, and 12 other legislators can run again in the fall.

All will have served at least 12 years in their offices by the end of the year.

Justices noted that unlike Rosenberg and other candidates, legislators begin service the day after the election, under the state constitution.

Consequently, the terms of the legislators being challenged began on Nov. 6, 1996, or three weeks before the term limit amendment results were certified on Nov. 27, 1996.

Woodbury, Rosenberg and the others did not begin their terms until January 1997.

"I am annoyed by the selective application of the law," Rosenberg said. "It should apply to everyone across the board."

In interviews Monday, two lawyers who asked not to be identified said the federal courts rarely take state cases in which a state Supreme Court has ruled on state constitutional questions. There must be a federal issue on which to base a case before the federal courts.

One of the attorneys said Rosenberg would have to base a challenge on the grounds that Friday's decision violated the Equal Protection Clause of the U.S. Constitution. That would be difficult to show even though the state court treated him differently than legislators, he added.

History also is against Rosenberg.

The U.S. Supreme Court twice refused to hear a challenge to a Nevada Supreme Court decision in a state constitution case filed in 2003 by then Assemblywoman Sharron Angle, R-Reno.

Angle challenged the decision in the case of then-Gov. Kenny Guinn versus the Legislature that temporarily set aside a state constitutional amendment that tax increases need at least a two-thirds majority vote in each house of the Legislature before they can take effect.

After the decision, legislators approved a record $833 million tax increase. Assemblyman John Marvel, R-Battle Mountain, changed his no vote, so the increase did pass by a two-thirds vote in both houses.

The U.S. Supreme Court gave no reason why it would not hear Angle's challenge.

Based on the Supreme Court records, Angle said it was a 100-to-1 long shot that the court ever would have heard her case.

Like now, legal scholars said at the time that the U.S. Supreme Court rarely reviews state supreme court decisions when the courts are reviewing their own constitution.

Rosenberg emphasized that he relied on Del Papa's and others' opinions.

"I followed the process," said Rosenberg, who has taught at the University of Nevada, Reno for 41 years. "I teach kids to follow the process."

But in a 2005 legal opinion, Bart Patterson, a university system legal counsel, warned Rosenberg and Dondero that they might not be eligible to run again in 2008.

Rosenberg's name will remain on primary election ballots and he expects to get more votes than his two challengers.

Signs will be posted at polling places that he and the 20 others are ineligible to serve, but it is too late to remove their names from the actual ballot.

Review-Journal writer Richard Lake contributed to this report. Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3901.