Audacity doesn’t trump the law in NLV recall
If nothing else, you have to give North Las Vegas Municipal Court Judge Catherine Ramsey credit for boldness and audacity.
Ramsey, the subject of a temporarily stalled recall election in that increasingly troubled little city, has argued judges are not subject to recall, nor should they be, lest the judiciary become captive to the popular passions of the people.
It appears the state Constitution and the vast weight of the evidence is to the contrary. But since this case will be decided by Supreme Court judges who are themselves elected (and thus, perhaps, subject to recall), there's a political dimension to the case.
It began when the city's police union kicked off a recall against Ramsey for a variety of reasons, including the alleged misuse of a city purchasing card to pay legal expenses in an unrelated case. Ramsey denies wrongdoing, and says she's the subject of retaliation from a dysfunctional City Hall.
Recall proponents are relying on Article 2, Section 9 of the state Constitution, which says simply that "every public officer in the state of Nevada is subject ... to recall from office by the registered voters of the state, or of the county, district or municipality which he represents."
It seems clear enough, especially when you consider the arguments advanced by the recall proponents' attorneys, former Secretary of State Ross Miller and ex-investigative reporter Colleen McCarty: There is an attorney general's opinion that says judges are public officers subject to recall; the Standing Committee on Judicial Ethics has agreed with that interpretation; the Nevada and American bar associations opposed the amendment that created Article 2, Section 9 way back in 1912, specifically because it allowed for the recall of judges; and the Nevada Supreme Court itself has indicated in a 2007 case involving the late Judge Elizabeth Halverson that judges can be removed by recall.
All of that is probably why District Court Judge Eric Johnson ruled earlier this month that Ramsey's recall could proceed.
But Ramsey's attorney, Craig Mueller, says not so fast: A separate amendment to the state constitution enacted in 1976 says the Judicial Discipline Commission has jurisdiction over judges, and that voters enacted an "implied repeal" of the recall provision (at least with respect to judges) when that commission was created.
Johnson disagreed, saying while the commission may have exclusive authority to discipline judges, recalls are not the same thing as discipline. And there's no evidence whatsoever that voters intended to give up their recall authority in the 1976 amendment.
That's borne out by history, too. Voters in Nevada have repeatedly rejected proposals to appoint judges rather than elect them. If voters are so jealous about guarding their prerogative to put judges into office, how can anyone think they'd be any less reluctant to give up their power to remove them?
And that, Mueller argues, is part of the problem: "Lower court judges tend to come from smaller electoral districts and could face recall elections pushed by relatively few voters in their jurisdictions," he wrote. "The risk of recall impairs judicial independence."
Not so far, at least: Both sides admit no judge has ever been recalled in Nevada history. Even so, that's hardly the point, Miller and McCarty argue: "The people [who signed the recall petitions] have spoken and they should not be made to weather an elected official who does not serve their interests at significant taxpayer expense."
The Supreme Court has put the recall on hold temporarily and asked both sides to address a procedural issue. A final ruling might not come until a full-blown appeal has been filed. But whenever it comes, you can bet it will make very interesting reading.
Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.
