How many pin-headed lawyers can dance around an issue without ever reaching a logical point?
I have no idea. I lost count while poring over the arguments and counterarguments whirling around the term limits question: Can they run again or not?
That is the question before the Nevada Supreme Court.
It is a question that concerns a number of popular and long-serving politicians — County Commissioner Bruce Woodbury, Assembly Speaker Barbara Buckley and university system regent Thalia Dondero to name a few. Does the constitutional amendment passed by the voters in 1996 limiting terms of public office to 12 years kick in now in 2008 or not until 2010?
I asked political consultant Sig Rogich, who was one of the major backers of the term limits amendment, what he thought, trying to get at something like legislative intent. When the law might be interpreted in different ways, what did the backers intend?
Rogich said he always believed the amendment would take effect with the next election in 1998 and that office holders would have to exit 12 years later in 2010.
So, there you have it, case closed, right? But is that what I and a majority of voters agreed to back in 1994 and 1996?
Return with us now to those muddled days of yesteryear when fear stalked the land and career politicians were praying for a white knight to rescue them. Along came Attorney General Frankie Sue Del Papa with a legal opinion.
“As a general rule,” Del Papa and a deputy AG wrote, “a constitutional amendment is to be given only prospective application from its effective date unless the intent to make it retrospective clearly appears from its terms. Here, the amendment is void of any term indicating the legislature or electorate intended retrospective application.”
Yes, our common law traditions frown on what are called ex post facto laws. If you spit on the sidewalk on Tuesday and spitting on the sidewalk is made a crime on Wednesday, you can’t be charged retroactively.
Conversely, lawmakers or the courts can repeal the spitting-on-the-sidewalk law and it’s as if it never existed.
The voters can amend their constitutions darn near anyway they wish.
Frankly, I think all these lawyers should stop reading Blackstone and start reading McGuffey’s Primer.
Void of any term indicating retrospective application?
Here’s what the amendment says: “No person may be elected to any state office or local governing body 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 …”
The phrase “current term” appears three times. “Has served” is retrospective. The use of the phrase “expiration of current term” is just to make it clear that if the election is in November but you are not sworn in until January you still can’t run if you will have served 12 years by then.
Attorney Dominic Gentile, who is representing Steve Sisolak in his effort to take over from Woodbury on the commission, was one of the few attorneys to grasp this simple concept while others were quibbling over when terms start.
At a July 1 hearing Gentile told the Supreme Court, “On 27 November 1996 when this constitutional amendment went into effect it said in clear terms that anyone who was in office at that moment and who had already served 12 years would not be eligible for re-election. … There is no ambiguity in that language.”
He pointed out that the AG relied on a 1992 Nevada Supreme Court opinion in Torvinen v. Rollins and misapplied it.
This is what the AG opinion said in quoting that case, “The court in Torvinen applied the general rule that ‘a constitutional amendment is to be given only prospective application from its effective date unless the intent to make it retrospective clearly appears from its terms.”
The opinion even quoted another case in which the court opined “statutes are presumed to operate prospectively and shall not apply retroactively unless they are so strong, clear and imperative that they can have no other meaning …”
The phrase “current term” is unambiguous and has no other meaning. Term limits kicked in back in 1998 and dozens of officeholders have been serving unconstitutionally since.
This newspaper editorially criticized the opinion when it came out, but no one took up the cudgel. So here we are 10 years later trying to take a corpse to the dance.
Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at firstname.lastname@example.org.