Lorton v. Jones , 2014 NV 8 ( 2014 )

130 Nev., Advance Opinion 8
IN THE SUPREME COURT OF THE STATE OF NEVADA
GEORGE "EDDIE" LORTON, No. 64194
Petitioner,
vs.
LYNNETTE JONES, IN HER OFFICIAL
CAPACITY AS RENO CITY CLERK;
AND DAN BURK, IN HIS OFFICIAL
CAPACITY AS THE WASHOE COUNTY
FILED
REGISTRAR AND CHIEF ELECTIONS FEB 2 0 2014
OFFICER OF WASHOE COUNTY,
INtDEMA
Respondents,
and
CLE".a!F
BY
j 1*
DEPUTY CLERK
JESSICA SFERRAZZA AND DWIGHT
DORTCH, IN THEIR CAPACITIES AS
CANDIDATES FOR CERTAIN
OFFICES,
Real Parties in Interest.
Original petition for a writ of mandamus or prohibition
challenging the eligibility of real parties in interest to run in the 2014
Reno, Nevada, mayoral election.
Petition granted.
Hardy Law Group and Stephanie R. Rice, Reno,
for Petitioner.
John J. Kadlic, City Attorney, and Tracy L. Chase, Chief Deputy City
Attorney, Reno,
for Respondent Lynette Jones.
Richard A. Gammick, District Attorney, and Herbert B. Kaplan, Deputy
District Attorney, Washoe County,
for Respondent Dan Burk.
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Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Bradley S. Schrager
and Daniel Bravo, Las Vegas,
for Real Party in Interest Jessica Sferrazza.
Gordon Silver and John P. Desmond, Brett J. Scolari, and Anjali D.
Webster, Reno,
for Real Party in Interest Dwight Dortch.
BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
Article 15, Section 3(2) of the Nevada Constitution prohibits
an individual from being "elected to any state office or local governing
body [if he or she] has served in that office, or at the expiration of his [or
her] current term [he or she] will have served, 12 years or more." The
parties do not dispute that the "local governing body" of the City of Reno,
Nevada, is the city council, which is made up of six council members and
the mayor of Reno. The issue we must decide is whether an individual
who has served for 12 years or more as a council member is thereafter
prohibited, by the limitations imposed under Article 15, Section 3(2), from
running for mayor of Reno. Because the Reno City Charter makes the
mayor a member of the city's "local governing body" for all purposes, we
conclude that Article 15, Section 3(2) bars a term-limited council member
from thereafter being elected mayor of Reno. We therefore grant the
petition for a writ of mandamus.
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BACKGROUND
The City of Reno is a municipal corporation, organized and
existing under the laws of the State of Nevada through a charter approved
by the Legislature. Under the Reno City Charter, the legislative power of
the city is vested in the city council, which consists of six city council
members and the mayor. Reno City Charter, Art. H, § 2.010(1). The
mayor and one of the city council members represent the city at large,
while the remaining city council members each represent one of Reno's
five wards. See id. § 2.010(3).
In this matter, real party in interest Jessica Sferrazza served
on the Reno city council as the representative for Ward 3 for 12 years,
ending in 2012. Real party in interest Dwight Dortch is currently serving
on the Reno city council as the representative for Ward 4. When his term
ends in 2014, he will also have served on the city council for 12 years.
Both Sferrazza and Dortch have publicly expressed an intention to run for
mayor of Reno in the 2014 election.
Petitioner George "Eddie" Lorton, a citizen of Reno who also
intends to run for mayor, filed this writ petition seeking extraordinary
relief preventing respondents Reno City Clerk Lynette Jones and Washoe
County Registrar and Chief Elections Officer Dan Burk from taking the
steps necessary to include either Sferrazza or Dortch on the 2014 ballot for
the mayoral race. Lorton asserts that both Sferrazza and Dortch are
ineligible to run for mayor under Article 15, Section 3(2) of the Nevada
Constitution by virtue of their 12 years of service as city council members.
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DISCUSSION
Article 15, Section 3(2) of the Nevada Constitution provides, in
full, that
[nlo person may be elected to any state office or
local governing body who has served in that office,
or at the expiration of his for her] current term if
he [or she] is so serving will have served, 12 years
or more, unless the permissible number of terms
or duration of service is otherwise specified in this
Constitution.
It is undisputed that, under this provision, an individual may not serve in
the same state office or position on a local governing body for more than 12
years. See Miller v. Burk, 124 Nev. 579, 599, 188 P.3d 1112, 1125 (2008).
The question here is, when a local governing body includes multiple
positions, such as when a city council is made up of both city council
members and the city's mayor, does Article 15, Section 3(2) also prevent
an individual who has served for 12 years in one position on that local
governing body from then serving additional terms in a different position
on the same body?'
Before reaching that question, however, we must first
determine whether a writ proceeding is an appropriate avenue for
obtaining the relief that petitioner seeks.
Writ relief
It is well established that writ relief is generally not available
when the petitioner has a plain, speedy, and adequate remedy at law. See
NRS 34.170; NRS 34.330; Inel Game Tech., Inc. v. Second Judicial Dist.
'This court invited the Nevada League of Cities and Municipalities
to participate in this original proceeding as amicus curiae, but the League
of Cities declined our invitation.
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Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). But even when a legal
remedy is available, this court may exercise its discretion to consider a
writ petition when the petition presents a legal issue of statewide
importance that needs clarification, and principles of judicial economy and
public policy weigh in favor of considering the petition. See Salaiscooper v.
Eighth Judicial Dist. Court, 117 Nev. 892, 901-02, 34 P.3d 509, 515-16
(2001) (indicating that, even when a legal remedy is available, this court
may exercise its discretion to consider a writ petition that presents an
issue of statewide importance when principles of sound judicial economy
weigh in favor of consideration of the petition); see also Walker v. Eighth
Judicial Dist. Court, 120 Nev. 815, 819, 101 P.3d 787, 790 (2004)
(recognizing that this court may consider a writ petition when "an
important issue of law needs clarification and public policy is served by
this court's invocation of its original jurisdiction" (internal quotation
marks omitted)).
In city elections, NRS 2930.186 allows a citizen to assert a
challenge to a declared candidate on the ground that the candidate does
not meet one of the qualifications for office, such as an age or residency
requirement. NRS 2930.186(1). Here, Lorton contends that this statutory
scheme is insufficient to allow a constitutional challenge to a declared
candidate to be timely resolved and argues that Sferrazza and Dortch do
not meet the constitutional requirements for the office of mayor because
they have each served the maximum permissible number of years on the
Reno city counci1. 2 Unlike a fact-based challenge to a candidate's age or
2Dortch, in his answer, agrees with Lorton that this issue should be
addressed by way of this writ petition. Sferrazza does not address the
propriety of writ relief in her answer.
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residency, the facts in this matter are not in dispute, as there is no
question that Sferrazza and Dortch will each have served for 12 years as
council members. Instead, this petition presents a purely legal question of
constitutional interpretation with regard to whether years of service as a
council member counts against the number of years that a council member
could serve as mayor.
Beyond determining whether Sferrazza and Dortch are
eligible for the position of Reno mayor, resolution of this petition will also
help define the parameters of Article 15, Section 3(2), so that future
potential candidates and challengers will be able to understand the
provision's effect and the district courts will be able to apply an
established interpretation of the provision to any factual disputes that
may arise with regard to a specific candidate's eligibility, not only in Reno,
but in any city where the government is structured such that the mayor is
a member of the city council. See, e.g., Henderson City Charter, Art. II, §
2.010(1) (providing that the Henderson city council is made up of four
council members and the mayor); Las Vegas City Charter, Art. II, §
2.010(1) (providing that the Las Vegas city council is made up of one
council member from each of six wards and the mayor); North Las Vegas
City Charter, Art. II, § 2.010(1) (providing that the North Las Vegas city
council is made up of four council members and the mayor).
We conclude that this petition presents an issue of statewide
importance for which judicial economy and public policy warrant
consideration of the writ. 3 See Walker, 120 Nev. at 819, 101 P.3d at 790;
'As we conclude that the nature of the issue presented warrants
consideration by way of this writ petition, we need not address Lorton's
continued on next page...
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Salaiscooper, 117 Nev. at 901-02, 34 P.3d at 515-16; see also Child v.
Lomax, 124 Nev. 600, 605-06, 188 P.3d 1103, 1107 (2008) (recognizing that
a writ petition relating to the term-limits provisions applicable to
members of the Nevada State Assembly presented a question of statewide
significance). Additionally, as the issue presented by this petition
concerns whether, as a matter of law, respondents are required to exclude
Sferrazza and Dortch from the 2014 ballot materials and does not involve
any question regarding the exercise of judicial functions, we conclude that
mandamus, rather than prohibition, is the appropriate vehicle for seeking
the relief requested by Lorton. Compare NRS 34.160 (providing that a
writ of mandamus is available to compel the performance of an act that
the law requires as a duty resulting from an office, trust, or station), with
NRS 34.320 (explaining that the purpose of a writ of prohibition is to
arrest "the proceedings of any tribunal. . . when such proceedings are
without or in excess of the jurisdiction of such tribunal"). Having
determined that this writ petition is appropriate for review, we now turn
to the substantive issue presented by the petition.
Standard of review
This court has not previously addressed the specific
parameters of Article 15, Section 3(2) with regard to the members of a
local governing body. 4 In the absence of any precedential authority, we
...continued
argument that the statutory scheme for challenging candidates provides
an insufficient amount of time for resolution of this matter.
4 The parties do not dispute that the Reno city council is a local
governing body within the meaning of Article 15, Section 3(2), or that the
mayor, as a member of the city council, is generally subject to the
limitations imposed by that provision. Consequently, we do not address
continued on next page...
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must interpret the language of Article 15, Section 3(2) in order to
determine whether that provision precludes a term-limited city council
member from running for mayor.
"The rules of statutory construction apply to the interpretation
of a constitutional provision." We the People Nev. ex rel. Angle v. Miller,
124 Nev. 874, 881, 192 P.3d 1166, 1170 (2008). If a provision is clear and
unambiguous, this court will not look beyond the language of the
provision, Miller, 124 Nev. at 590, 188 P.3d at 1119-20, but will instead
apply its plain meaning. Kay v. Nunez, 122 Nev. 1100, 1104, 146 P.3d 801,
804-05 (2006). A constitutional provision is ambiguous if "it is susceptible
to two or more reasonable but inconsistent interpretations." Miller, 124
Nev. at 590, 188 P.3d at 1120 (internal quotation marks omitted). If a
provision is ambiguous, this court "may look to the provision's history,
public policy, and reason to determine what the voters intended." Id.
Article 15, Section 3(2)
Article 15, Section 3(2) states that "kilo person may be elected
to any state office or local governing body who has served in that office" for
12 years or more. Nev. Const. art. 15, § 3(2) (emphasis added). In this
context, the word "that" is used to modify the general term "office" in order
to refer to a particular office. William A. Sabin, The Gregg Reference
Manual ¶ 308 (Elizabeth Haefele et al. eds., 11th ed. 2011). Specifically,
"that office" appears to refer to both the term "state office" and the phrase
...continued
these issues in this opinion. See In re Contested Election of Mallory, 128
Nev. , n.4, 282 P.3d 739, 742 n.4 (2012) (declining to consider
whether a district attorney was subject to term limits based on the "local
governing body" portion of Article 15, Section 3(2) because the parties had
not raised arguments related to that portion of the term-limits provision).
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"local governing body." See Nev. Const. art. 15, § 3(2). Put differently, the
sentence may properly be read as saying that "[n]o person may be elected
to any state office. .. who has served in that office" for 12 years or more,
and that "[n]o person may be elected to any. . . local governing body who
has served in that office" for 12 years or more. See id.
As to a state office, the effect of Article 15, Section 3(2) is clear
insofar as the word "office" is used in both parts of the phrase. See id. So
if a person has served in a particular state office for 12 years or more, that
person may not serve any additional terms in that specific state office. See
Id.; see also Miller, 124 Nev. at 599, 188 P.3d at 1125. The effect of the
portion of the provision referring to a "local governing body" is less clear
because the words "office" and "local governing body" have different
meanings, as an "office" is "[a] position of duty, trust, or authority,
esp[ecially] one conferred by a governmental authority for a public
purpose," Black's Law Dictionary 1190 (9th ed. 2009), while a "governing
body" refers to "[a] group of. . . officers or persons having ultimate
control." Id. at 764.
Lorton's interpretation
In his petition, Lorton argues that Article 15, Section 3(2)
precludes an individual from serving for more than 12 years in any
position or combination of positions on a single local governing body.
Thus, he contends that because Sferrazza and Dortch will have served for
12 years on the Reno city council, as council members representing their
respective wards, they cannot now serve additional terms on the council as
mayor. Lorton asserts that this interpretation of Article 15, Section 3(2) is
consistent with the purposes of the limitations provision—preventing
individuals from becoming career politicians and restricting the power of
lobbyists and special interest groups—because it prevents a person from
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being elected to different positions within the same local governing body
after he or she has served the maximum number of years.
The interpretation of the "local governing body" portion of the
provision set forth by Lorton seems to require the phrase "that office" to be
read as meaning the entire "local governing body," such that the provision
would be understood to mean that "Ink person may be elected to
any. . . local governing body who has served [on] that [local governing
body]" for 12 years or more. See Nev. Const. art. 15, § 3(2). Under this
interpretation, when an individual has been a member of a local governing
body for 12 years or more, that individual would no longer be eligible for
election to that body in any capacity. See id.
The problem with this approach, however, is that interpreting
the phrase "that office" to refer to an entire governing body assigns a
meaning to the term "office" that is somewhat different from its usual and
customary meaning. See State v. Stu's Bail Bonds, 115 Nev. 436, 439, 991
P.2d 469, 471 (1999) (explaining that this court should presume that
words have "their usual and natural meaning"). In particular, as noted
above, the term "office" generally refers to a single position, Black's Law
Dictionary 1190, whereas a "governing body" is made up of a group of
people. Id. at 764.
A different way to consider Lorton's approach would be to
construe "that office" to refer to a particular office or position within a
local governing body, but to separate "that office" from the antecedent
"local governing body" language, and to then interpret "local governing
body" itself to refer to the body as a whole. The effect of this view of
Article 15, Section 3(2) would be that "kilo person may be elected to
any .. . local governing body who has served in [any] office [within that
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local governing bodyif for 12 years or more. But this approach is also
problematic, as it would effectively require us to replace the phrase "that
office" with "any office within that local governing body." Thus, taking
either of these approaches, Lorton's interpretation does not fit squarely
within the plain language of Article 15, Section 3(2).
Sferrazza's and Dortch's interpretation
In their answers to the petition, Sferrazza and Dortch each
argue that Article 15, Section 3(2) only prevents an individual from
serving in a particular "office" or "position" within a local governing body
for more than 12 years. 5 Sferrazza and Dortch contend that interpreting
the constitution to mean that a person cannot serve for more than 12
years in distinct offices within a local governing body renders the phrase
"in that office" meaningless within the provision. Sferrazza and Dortch
therefore assert that because the Reno city council members and the Reno
mayor serve in different capacities, one who has served for 12 years as a
5 In his answer, Dortch points to this court's statement in Miller, 124
Nev. at 599, 188 P.3d at 1125, that "Article 15, Section 3(2) plainly states
that if a person has served, or at the conclusion of his or her current term
will have served, 12 years or more in an office or a position on a local
governing body, that person may not be reelected to that office or position"
(emphases added), for the proposition that this court has already
determined that the term limits apply only to individual positions within a
local governing body. In Miller, however, this court did not specifically
address the scope of the limitations provision with regard to whether the
same limits apply to different positions within a single local governing
body. Instead, the language cited by Dortch was contained in a general
statement that term limits apply to state offices and local governing
bodies. Moreover, the words "position on" were added before "a local
governing body" without any express discussion as to the impact of that
addition. As a result, we conclude that the language cited from Miller is
not determinative of this writ petition.
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city council member is not precluded from serving additional terms as
mayor. Such an interpretation would cause Article 15, Section 3(2) to be
understood to mean that "[Ill° person may be elected to any. ... [office
within all local governing body who has served in that office" for 12 years
or more.
This approach interprets "that office" to refer to a single,
specific office, rather than to a group of offices. Nevertheless, as Article
15, Section 3(2) refers to a "local governing body," and not to an "office" on
a local governing body, taking this approach would require us to read
words into Article 15, Section 3(2) that are not expressly there. See State
Indus. Ins. Sys. o. Bokelman, 113 Nev. 1116, 1122, 946 P.2d 179, 183
(1997) (providing that this court should not add to or alter language in a
provision "to accomplish a purpose not on the face of the [provision] or
apparent from permissible extrinsic aids such as legislative history or
committee reports" (internal quotation marks omitted)).
In short, neither reading of Article 15, Section 3(2) set forth by
the parties appears to be plainly correct based on the specific language of
that provision. Thus, because these inconsistent interpretations are both
reasonable, we conclude that Article 15, Section 3(2) is ambiguous. See
Miller, 124 Nev. at 590, 188 P.3d at 1120 (explaining that a constitutional
provision is ambiguous if "it is susceptible to two or more reasonable but
inconsistent interpretations" (internal quotation marks omitted)). As a
result, we look to the history of Article 15, Section 3(2), public policy, and
reason to determine the meaning of the provision. See Miller, 124 Nev. at
590, 188 P.3d at 1120.
Context within Article 15, Section 3(2)
Before looking outside the language of the provision, we note
that, although the text is ambiguous, the drafters' word choice may still
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provide some indications as to the proper interpretation of the provision.
On this point, it is significant that the drafters chose to use different
terms in addressing how term limits apply in state and local elections by
saying that a person may not be elected to a "state office or local governing
body." See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 170 (2012) ("Where the document has used
one term in one place, and a materially different term in another, the
presumption is that the different term denotes a different idea."). To
illustrate, the drafters could have used "state governing body" and "local
governing body" to indicate the bodies as a whole. Or they could have
used "state office" and "local office" to refer to individual positions.
Instead, they chose the distinct terms "state office" and "local governing
body," which indicates that, at the state level, the drafters intended to
prevent election to a specific office, but at the local level, the intent was to
preclude continuing service on the governing body generally. 6 See id.
Purpose and public policy
Outside of the text, the purpose of the provision and public
policy are relevant to our interpretation of Article 15, Section 3(2), and
these considerations further support the conclusion that the limitations
apply to the local governing body as a whole. Article 15, Section 3(2)'s
6 We
are cognizant that the ballot questions used the terms "local
public officer" and "local governing body members" to describe to whom
Article 15, Section 3(2) would apply. Nevada Ballot Questions 1994, 1996,
Nevada Secretary of State, Question No. 9. While this language arguably
weighs in favor of the conclusion that the provision was intended to apply
to individual positions within a local governing body, when viewed on
balance with the remaining considerations discussed in this opinion, this
language is not sufficient to support a conclusion different than the one we
reach herein.
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limitations provision was enacted by the voters through the ballot
initiative process following its approval at the 1994 and 1996 elections.
When the question was presented to voters, the proponents stated that its
purpose was to "stop career politicians" by preventing them from holding
office for an excessive number of terms. Nevada Ballot Questions 1994,
1996, Nevada Secretary of State, Question No. 9. The objective of limiting
career politicians in order to promote a government of citizen
representatives has been recognized as a legitimate state interest
validating the imposition of term limits. See Nev. Judges Ass'n v. Lau, 112
Nev. 51, 56, 910 P.2d 898, 901-02 (1996) (citing Legislature of Cal. v. Eu,
816 P.2d 1309, 1325 (Cal. 1991)).
With regard to city council members, prohibiting reelection to
the "local governing body" as a whole is in line with this goal, given that a
local governing body may be made up of members who represent different
wards, and thus arguably hold different offices, but whose roles are
essentially the same. See Mason's Manual of Legislative Procedure § 52
(Nat'l Conference of State Legislatures 2010) ("In public bodies the
equality of members is presumed."); id. § 120 ("The rights and duties of
members of a legislative body are derived from and founded upon the
absolute equality of the members."). In light of this structure, prohibiting
a city council member who is term limited in one ward from being elected
to what is essentially the same position in a different ward serves the
purpose of preventing one person from holding the same political position
for excessive years.
Sferrazza and Dortch argue that this purpose would not be
undermined under their interpretation of Article 15, Section 3(2) because
their interpretation would not allow a council member to serve for more
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than 12 years by representing multiple wards. They say that this is so
because the council members collectively serve in one office within the city
council, while the mayor serves in a separate office on that body. Building
on this foundation, Sferrazza's counsel asserted at oral argument that
Article 15, Section 3(2) is "office based," in that it precludes reelection to
the same office, as opposed to being "body based" and precluding reelection
to the body as a whole. But as discussed above, Article 15, Section 3(2)
does not say that a term-limited individual is precluded from reelection to
"an office on a local governing body." Instead, it says that the person may
not be reelected to the "local governing body."
In further evaluating the "office based" versus "body based"
distinction, the term-limits provisions related to the Nevada Legislature
provide helpful context. In particular, Article 4, Section 3(2) of the
Nevada Constitution provides that "[n]o person may be elected or
appointed as a member of the Assembly who has served in that
Office . . . 12 years or more, from any district of this State." (Emphasis
added). Similarly, Article 4, Section 4(2) states that "[n]o person may be
elected or appointed as a Senator who has served in that Office . .. 12
years or more, from any district of this State." (Emphasis added). In these
two provisions, "that office" refers to the office of "member of the
Assembly" and the office of "Senator," respectively. In the absence of
clarifying language, these provisions could have been interpreted to mean
that a Senator representing a specific district could not serve for more
than 12 years as the representative of that district. But the drafters
included the phrase "from any district of this state" to preclude any
question as to whether the provisions prevented reelection only to the
specific seat or to the Assembly or Senate respectively. While Article 15,
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Section 3(2) does not include the same language as Article 4, Section 3(2)
and Article 4, Section 4(2), it does provide that the person may not be
elected to the "local governing body," again indicating an intent• to
preclude election to the body as a whole, which is consistent with the
term-limit provisions governing elections to the Legislature.
Based on these considerations, we conclude that the drafters
intended to preclude reelection to the local governing body as a whole
when a member has served on that body for 12 years or more in any
capacity. 7 Thus, the question that remains is whether the mayor of Reno
is sufficiently distinct from the city council to preclude application of
Article 15, Section 3(2) to council members who may seek to run for
mayor.
Article 15, Section 11 and the Reno City Charter
In construing constitutional provisions, we must read those
provisions in harmony with each other whenever possible. See Williams v.
Clark Cnty. Dist. Attorney, 118 Nev. 473, 485, 50 P.3d 536, 543 (2002)
(recognizing this court's obligation to construe statutory provisions in
harmony with each other when possible). Under Article 15, Section 11 of
the Nevada Constitution, the provisions of a legally adopted charter
control with regard to "the tenure of office or the dismissal from office" of
any municipal officer or employee. Reading that provision in conjunction
with Article 15, Section 3(2), this court must give effect to any charter
7Although not binding authority, we note that our decision herein is
consistent with that issued by the Legislative Counsel Bureau in its
December 15, 2011, opinion. Letter from Brenda J. Erdoes, Legislative
Counsel, to Senator Ben Kieckhefer (December 15, 2011) (discussing the
limitations provision of Article 15, Section 3 of the Nevada Constitution).
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provisions that shed light on the extent to which the mayor is part of the
local governing body, and thus, is subject to Article 15, Section 3(2)'s
limitations. As a result, we must look to the Reno City Charter in order to
determine whether, in Reno, a council member who has served for 12
years or more is precluded from being elected as the mayor of Reno.
Notably, the Reno City Charter states that the city council is
Reno's governing body. See Reno City Charter, Art. I, § 1.014. And the
charter expressly provides that the mayor is a member of the city council,
Id., Art. II, § 2.010(1); id., Art. III, § 3.010(1)(a), which in turn means that
the mayor is a member of the local governing body. See also id., Art. I, §
1.014. We recognize that the mayor is identified in the charter as a
separate elective officer from the other six council members, see id. §
1.060(1)(a) and (b), and that the mayor has additional duties that do not
fall on the other council members. See, e.g., id., Art. II, § 2.040(2)
(explaining that the mayor is the only council member who may call
special meetings of the city council); id., Art. III, § 3.010(1)(a) and (d)
(providing that the mayor determines the order of business for and
presides over city council meetings); id. § 3.010(1)(f) (requiring the mayor
to take measures to preserve the public peace and suppress riots and other
public disturbances). But these additional responsibilities do not divest
the mayor of his or her full and equal membership on the city council. See
4 Eugene McQuillin, The Law of Municipal Corporations § 13:29 (3d ed.
Rev. 2011) (noting that when a city charter designates a mayor as a
member of a city council, the mayor for all intents and purposes serves as
a member of that governing body); see also Harrison v. Campbell, 254 S.W.
438, 439 (Ark. 1923); Griffin v. Messenger, 86 N.W. 219, 219 (Iowa 1901);
Dafoe v. Harshaw, 26 N.W. 879, 880 (Mich. 1886).
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Furthermore, a review of the charter demonstrates that the
mayor's primary function relates to his or her service on the city council.
Compare Reno City Charter, Art. III, § 3.010(1)(a) (providing that the
mayor presides over city council meetings and serves as a member of the
council), with Sparks City Charter, Art. III, § 3.010(1)(a) (explaining that
the mayor presides over the meetings of the city council but may not vote
on any matter). The mayor of Reno is not the chief executive and
administrative officer, as that role is filled by the city manager, see Reno
City Charter, Art. III, § 3.020(1), and the mayor has no administrative
duties. See id., Art. III, § 3.010(1)(b). The mayor is the head of the city
government for ceremonial purposes only. Compare Reno City Charter,
Art. III, § 3.010(1)(c) (recognizing the mayor as the head of the Reno
government for ceremonial purposes), with Sparks City Charter, Art. III, §
3.010(1)(b) (requiring the mayor to act as the head of the Sparks
government for all purposes). While the Reno City Charter may assign
additional duties to the Reno mayor, none of those added duties change
the equality of all of the members of the city council or provide a basis for
the unequal application of the limitations provision to all members of the
"local governing body."
Thus, based on the provisions of the Reno City Charter, we
conclude that the Reno mayor is a member of the "local governing body,"
subject to the same limitations that apply to the other city council
members. Accordingly, because Sferrazza and Dortch each will have
served on the Reno city council for 12 years by the end of the current term,
they are ineligible to be elected as Reno's mayor. See Nev. Const. art. 15, §
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3(2). We therefore grant the petition and direct the clerk of this court to
issue a writ of mandamus requiring respondents to exclude Sferrazza and
Dortch from the ballot materials for the 2014 Reno mayoral election. 8
\c,-L J.
Hardesty
We concur:
, C.J.
Gibbons
J.
Douglas '1 1A2
8 1nlight of our decision herein, we deny Sferrazza's request for
attorney fees pursuant to NRS 293C.186(6) without considering whether
such a request may properly be presented in a writ petition.
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PICKERING, J., concurring:
I join the majority but write separately to respond to the
dissent, which focuses on dictionary definitions of "office" and "local
governing body" but does not adequately consider the meaning these
words have in the context of Article 15, Section 3 of the Nevada
Constitution. See United States v. Costello, 666 F.3d 1040, 1044 (7th Cir.
2012) (Posner, J.) ("Dictionary definitions are acontextual, whereas the
meaning of sentences depends critically on context, including all sorts of
background understandings.").
The Nevada Constitution relies on municipal charters to
establish standards for the tenure and dismissal of municipal officers and
employees. Nev. Const. art. 15, § 11. Here, the Reno City Charter vests
all of "Nhe legislative power of the City .. in a City Council consisting of
six Council Members and a Mayor." Reno City Charter, Art. II, § 2.010(1).
To be mayor, a person must also be a member of the city council. Id., Art.
§ 3.010(1)(a). The mayor has a legislative vote, equally with any other
member of the city council. Id. § 3.010(1)(e). And the City Charter
specifies that the mayor of Reno, unlike some other Nevada mayors,
"[dhall not have any administrative duties." Id. § 3.010(1)(b).
The dissent argues that there is a difference between the
mayor and other city council members and, to be sure, there is: The mayor
has all the duties, powers, and prerogatives of a city council member plus
acts as the City's "ceremonial" leader, id. § 3.010(13(c), and is charged with
preserving public peace and suppression of riots," id. § 3.010(1)(6. But
does this turn the mayor into a separate officer for pinposes of exercising
powers of governance ceded by Reno's citizens to their city council? The
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dissent argues that it does because a city council member who becomes a
mayor takes on additional duties,- making the mayor job a new office.
What if the order of things was reversed and the person served first as
mayor and then city council member? In that event, the mayor would
continue doing the exact same legislative job, just minus his or her
ceremonial and riot-suppression duties. Yet, as an equal holder of the
substantive vote, the mayor—*city council member could perpetuate his or
her legislative policies for 24 years.
The dissent accepts that a person could not serve 72 years on
the city council by moving from ward to ward and finally taking the at
large position. Why should this be different for someone who, judged by
the power ceded to him or her, is a city council member with some
ceremonial duties?
Whether we agree or disagree with the policies underlying
term limits, the voters amended the Nevada Constitution to impose them.
Nev. Const. art. 4, §§ 3(2) & 4(2); id., art. 15, § 3(2). The contemporaneous
understanding of the voters who passed the amendment is evident in the
question they voted on: "Shall the Nevada Constitution be amended to
establish term limits for state and local public officers in the executive and
legislative branches of government?" Nevada Ballot Questions 1996,
Nevada Secretary of State, Question 9(a). It is further evident in the
explanation of the amendment that appeared on the ballot--the voters
who passed the measure were told that it would limit the terms of "state
officials and local governing body members" to set terms, mostly of 12
years. Id The measure passed decisively, twice. As enacted, the
amendments specifically address the two houses of the state Legislature:
A person cannot evade the term limits provisibn by moving from district to
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district. Nev. Const. art. 4, §§ 3(2) & 4(2). And they make no exception for
the legislator who serves as speaker or in another legislative leadership
role.
The point is to put time limits on the exercise of legislative or
executive authority by elected politicians. This explains the reference to
"local governing body." Nev. Const. art. 15, § 3(2) (emphasis added). Reno
voters only ceded the power to govern the City—that is to say, exercise
legislative authority over them—for a maximum of 12 years. Just as at
the state level a member of the senate or assembly cannot perpetuate his
or her tenure beyond 12 years by moving from district to district, a Reno
city council member's authority is limited to 12 years. To me, the fact that
the mayor exercises the exact legislative authority a city council member
does—and has no administrative duties, Reno City Charter, Article III,
§3.010(1)(b)—answers the term-limits question. The addition of
ceremonial and riot-suppression duties doesn't change the time limits on
that exercise of ceded powers of civic governance.
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SAITTA, J., with whom PARRAGUIRRE, J., agrees, dissenting:
I would deny the petition for a writ of mandamus or
prohibition. Although the majority frames the issue in terms of whether
Article 15, Section 3(2) of the Nevada Constitution prohibits reelection to a
local governing body as a whole, the effect of the court's conclusion is to
find that the Reno mayor is essentially just a seventh city council member
with a few minor additional responsibilities thrown in to his or her job
description. This conclusion gives short shrift to both the language of the
constitutional provision and the role of the Reno mayor. To reach its
result, the court focuses on the "local governing body" language and
discounts the phrase "that office." To me, it is the "that office" language
that determines the provision's operation here.
The majority recognizes that its governing body-based
interpretation necessitates construing "that office" to mean either "that
local governing body" or "any office within that local governing body."
Such a construction, however, is contrary to our well-established rules of
construction, which charge this court with giving words their usual and
natural meaning. See State v. Stu's Bail Bonds, 115 Nev. 436, 439, 991
P.2d 469, 471 (1999). Black's Law Dictionary defines "office" as "[a]
position of duty, trust, or authority." 1190 (9th ed. 2009) (emphasis
added). A "governing body," on the other hand, encompasses a group of
officers. See Black's Law Dictionary 764 (defining "governing body" as "[a]
group of. . . officers or persons having ultimate control"). Thus, an office
cannot be equated to a governing body. Moreover, the drafters used the
word "that" to modify the word "office," which demonstrates that the
phrase "that office" refers to a specific office, not to any particular
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governing body as a whole. See William A. Sabin, The Gregg Reference
Manual II 308 (Elizabeth Haefele et al. eds., 11th ed. 2011). Undeniably,
the words "that office," as used in Article 15, Section 3(2), cannot be read
as meaning "that local governing body" or "any office within that local
governing body."
As used in Article 15, Section 3(2), "that office" identifies the
specific position that the person at issue has held for 12 or more years.
And for the phrase to have any significance within the term-limits
provision, "that office" must be the office to which the person is ineligible
for election. See Nev. Const. art. 15, § 3(2).
Here, the Reno City Charter explains that the Reno city
council is made up of two separate elective offices: mayor and city council
member. Reno City Charter, Art. I, § 1.060(1)(a), (b) (identifying the
mayor as one elective office and the six city council members as a separate
elective office); see also id., Art. II, § 2.010(1) ("The legislative power of the
City is vested in a City Council consisting of six Council Members and a
Mayor." (emphasis added)). In this context, no one disputes that the six
city council members all hold the same office, that of city councilman or
city councilwoman.' Indeed, the charter does not distinguish them from
one another and they are all granted the same duties and powers. See
generally id., Art. II. And, as discussed by the majority, the council
'Thus, while the city council members each represent a separate
ward or the city at large, they are nonetheless all subject to the same term
limits. See Reno City Charter, Art. I, § 1.060(1)(b). As a result, any
concerns that my interpretation of Article 15, Section 3(2) of the Nevada
Constitution would allow council members to avoid the application of term
limits by shifting positions on the city council are unfounded.
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2
members are all of equal rank. See Mason's Manual of Legislative
Procedure § 52 (Nat'l Conference of State Legislatures 2010) ("In public
bodies the equality of members is presumed "); id. § 120 ("The rights and
duties of members of a legislative body are derived from and founded upon
the absolute equality of the members.").
But the mayor is different. The mayor is elected to the office
of mayor, not to the office of city council member. Bob Cashell is formally
recognized as Mayor Cashell, not Councilman Cashell. Further, the
mayor's responsibilities are set out distinctly in the part of the charter
governing the executive department, Reno City Charter, Art. III, §
3.010(1), while the city council members' duties are included in the article
governing the legislative department. See generally id., Art. II. And
unlike the council members, the mayor is the public figurehead of the
Reno city government. See id., Art. III, § 3.010(1)(c).
Quite significantly, the mayor alone is charged with protecting
the public peace and suppressing riots, and section 3.010(1)(f) authorizes
him or her to declare emergencies and empowers the mayor to take
immediate protective actions such as establishing a curfew, barricading
streets and roads, and redirecting funds for emergency use. See Reno
Municipal Code §§ 8.34.050(a), 8.34.060. And finally, the mayor is
responsible for appointing certain commission and committee members.
See Reno City Charter, Art. IX, § 9.030(1) (providing that the mayor
appoints the members of the Reno Civil Service Commission). These
duties are among those that set the mayor apart from the six city council
members, establishing the office of mayor as a separate and distinct office.
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As a result, a person who has served for 12 years as a city council member
has not served in the office of mayor, and thus, is not precluded by Article
15, Section 3(2) from holding "that office."
J.
I concur:
et.JLA
Parraguirre
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