FELIX F. STUMPF, FAUN DIXON, AND DONALD CARLSON, PETITIONERS, v. CHERYL A. LAU, IN HER CAPACITY AS SECRETARY OF STATE, RESPONDENT.
No. 23517
Nevada Supreme Court
September 18, 1992
839 P.2d 120
Bible, Hoy, Trachok, Wadhams & Zive, Reno; Hamilton & Lynch, Reno; Richard E. Thornley, Carson City; John Calvin Jeffries, Jr., Charlottesville, Virginia, for Petitioners.
Frankie Sue Del Papa, Attorney General, Kateri Cavin, Deputy Attorney General, Carson City, for Respondent.
Susan Quig-Terry, Las Vegas, for Nevadans for Term Limits.
By the Court, SPRINGER, Vice-Chief Justice:
On August 19, 1992, this court issued an alternative writ of mandamus to the Secretary of State ordering the Secretary either to remove from the November ballot an initiative proposal that seeks to place limits on the number of terms a United States Congressman or Senator from Nevada may serve, or show cause why the proposal should not be rejected.1 The writ was issued on
After examining the written responses to the mandamus petition and listening to the oral arguments of counsel, the true nature of this initiative effort began to unfold: the initiative was designed not to change the law or the constitution but to let the people “express themselves” in what would amount to a straw poll or statement of public opinion on the question of how many voters favored or disfavored changes in the terms of our United States Senators and Congressmen. We heard no serious argument claiming that the people of this state, through the initiative process provided for in our state constitution, had the power to interfere with the qualifications and terms limits of federal office holders. We received no acceptable explanation of how an initiative petition could bring about an amendment of the Nevada Constitution when the initiative did not mention the Nevada Constitution or even the word, “amend.” The insufficiency in the number of valid signatures that appears from the record before us was not cogently argued on the merits but, rather, was dismissed with the argument that only a trial court could deal with such factual matters. Counsel for the Secretary of State argued that the mere fact that the initiative might be unlawful is not enough to disqualify the petition. Counsel for the initiative petitioners argued that people have the right to propose an idea; and if they have enough signatures, they have the right to vote on it. Even one of this court‘s justices wondered if it might not be proper to allow the matter on the ballot just so the people would “be able to express their views.” This, then, is the real question: Should this court reject a proper challenge to the initiative process and thereby approve a statewide balloting whose only purpose is to allow the people to express their views, when all concerned appear to recognize that voter approval would enact a proposition that was contrary to the Constitution of the United States and would not have any legal force or effect? We answer the question in the negative and hold, as we did in Caine v. Robbins, 61 Nev. 416, 131 P.2d 516 (1942), that
[i]f a proposed amendment to the state Constitution by its
terms specifically and necessarily violates a command or limitation of the Federal Constitution, . . . the prescribed legal procedure for submitting such a proposed amendment to the electorate . . . may be enjoined at the suit of proper parties in order to avoid the expense of submission, when the amendment, if adopted, would palpably violate the paramount law and would inevitably be futile and nugatory and incapable of being made operative under any conditions and circumstances.
Id. at 425, 131 P.2d at 519 (quoting Gray v. Winthrop, 156 So. 270, 272 (Fla. 1934)).
I. Violation of the Paramount Law
Opponents to the mandamus petition now before us made little or no argument urging that the people of this state have the power to alter the qualifications or terms limits of federal offices created by the Constitution of the United States. Not even Congress has the power to alter qualifications for these federal constitutional officers. See Powell v. McCormack, 395 U.S. 486 (1969). As this court noted in State ex rel. Santini v. Swackhamer, 90 Nev. 153, 155, 521 P.2d 568, 569 (1974) (quoting 1 Story on the Constitution, (5th Ed. § 627)), “[t]hose officers owe their existence and functions to the united voice of the whole, not of a portion of the people.” Further, as Justice Story has observed, “the States can exercise no powers whatsoever which exclusively spring out of the existence of the national government . . . .” Id. Thus, the initiative petition, whether it enacts a law or amends the state constitution, can have no effect on the terms of members of the United States Congress.
This point need not be overly belabored. The term limits initiative clearly and “palpably” violates the qualifications clauses of
In Las Vegas Chamber of Commerce, this court addressed a ballot question that arguably might have been applied in a constitutional manner. Unlike the ballot question at issue in Las Vegas Chamber of Commerce, the ballot question in the instant case falls squarely into the category of initiative measures defined in Caine which are subject to removal by this court. The question here cannot be implemented in a constitutional manner, and we envision no political utility in burdening an already strapped public fisc with the expense that would inevitably be incurred by placing a meaningless question on the ballot, conducting the election, and tallying the votes. As we noted in Caine:
To deny the jurisdiction of courts in a case of this character, where a plain, palpable violation of the constitution is threatened, would be to concede that irreparable injury, obvious and undisputed, was beyond the restraint of the remedial arm of equity.
As a justice of this court commented at the time of oral argument, “The word constitution does not appear,” in the initiative petition. There is nothing that would prevent the Secretary of State from drafting the initiative petition‘s proposals as a statutory enactment rather than as a constitutional amendment. The potential signers certainly were given no indication on the form that they signed that they were urging such momentous action as amending our state constitution. The Nevada Constitution is the fundamental law of our state, and if it is to be amended by an initiative, “potential signers are to be made specifically aware of the solemnity of their act in signing that they may do so with full appreciation of the fact that they are participating in an effort to change the fundamental law, i.e., the constitution of their state.” State ex rel. Scott v. Kirkpatrick, 484 S.W.2d 161, 164 (Mo. 1972). In Scott, the Missouri State Constitution required the enacting clause in an initiative to state that the constitution would be amended. Our constitution requires that there be an enacting clause stating: “The People of the State of Nevada do enact as follows[].”
Our constitution is too sacred a document to be amended by way of an initiative petition that does not mention the constitution and which is framed in terms of an ordinary law, an Act. The initiative petition clearly must fail on this ground alone.
III. Insufficiency of Signatures
With regard to the petitions from two counties, Carson City and Lyon County (or “Lion County” as it appears in the answer filed by Nevadans for Term Limits), it is clear from the record before us that these petitions cannot qualify.
In Carson City, one William Elton Harvey circulated documents 73 through 82. On May 9, 1992, Harvey signed each document in the space provided. On each of the documents were also Harvey‘s validating affidavit sworn to on May 9, 1992. On May 9, 1992, when he signed the petition documents and the affidavits, he was not a registered voter. If because of Harvey‘s ineligibility to execute the validating affidavits these documents are not valid, the petition fails in Carson City.
In Lyon County, one Jeanette B. Smith circulated a twenty-five-signature document which she signed on May 28, 1992. On May 28, 1992, however, she was not a registered voter. If the twenty-five-signature document is not valid, the petition fails in Lyon County. If Lyon County and Carson City do not qualify, the whole initiative fails.
The question is a very simple one: Is one who is not a registered voter at the time he or she signs the petition empowered to sign the validating affidavit required by
There is no way on the record as it now stands that the initiative petition can be said to have the required number of valid signatures. It may be stricken from the ballot on this ground alone.4
IV. Conclusion
As JUSTICE STEFFEN pointed out at oral argument, the obvious and proper way of going about effecting changes in the terms of federal constitutional officers is to amend the Constitution of the
“It would be a disservice to the proponents, to the protestants, and to the state‘s citizens to hold an election that could not withstand the immediate . . . challenge that would be bound to follow.” See In re Initiative Petition No. 349, 838 P.2d 1.
The proposed Term Limitation Act, as it is called, cannot be allowed to stay on the ballot. Elections in this state are not games or straw polls. If the initiative attempt must fail, it must fail now and not after public and private time, money and energy have been expended in the political process. We would be shirking our duty indeed if we failed to act in this manner now. The writ is made permanent; the Secretary of State is ordered to remove the matter from the ballot.
ROSE, J., and HANDELSMAN, D. J.5 concur.
STEFFEN, J., with whom YOUNG, J., joins, dissenting:
The majority has hastily painted a picture highlighting the blemishes on the challenged initiative (hereafter “initiative” or “Question 7“). Unfortunately, the majority‘s preoccupation with the blemishes seems to have obscured what I believe to be the more comely part of the picture. Discussing perspective has little value, however, as the metaphoric picture to which I make reference has the force of law behind it that disenfranchises the right of Nevada‘s citizens to participate in the completion of the painting. Casting aside this court‘s tribute to the value of public sentiment, Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 802 P.2d 1280 (1990), the majority hastens to resolve highly complex issues of first impression to create a foundation for issuing a discretionary writ enjoining a public vote on a subject of great current interest in this nation. My basis for dissenting has far more to do with the timing and the scope of the majority opinion than it does with its analysis of the defects in the initiative and the prospects for the initiative‘s constitutional validity if it were to succeed as an amendment to the Nevada Constitution. The majority, not unreasonably convinced that passage of Question 7 would provide but a fleeting victory to be dashed by a subsequent challenge in the courts, has elected to spare the electorate the possible frustration of being advised that they have voted in vain. For reasons I shall endeavor to express hereafter, I
I suggest initially, that stare decisis demands that this court ask and answer in a legally defensible way at least one threshold question before reaching the merits of petitioners’ federal constitutional arguments. In Caine v. Robbins, 61 Nev. 416, 131 P.2d 516 (1942), this court held that a proposed amendment to the state constitution ”may be enjoined” (emphasis added) where the question, if enacted, would constitute a plain and palpable violation of the United States Constitution and would “inevitably be futile and nugatory and incapable of being made operative under any conditions or circumstances.” Id. at 425, 131 P.2d at 519 (quoting Gray v. Winthrop, 156 So. 270, 272 (Fla. 1934)). I emphasize the discretionary word “may” because it is clear that even where this court is convinced that an initiative is fatally endowed with unconstitutionality, we may nevertheless choose not to interfere in the process of public expression.
Less than two years ago this court announced:
[E]ven if an initiative measure is unconstitutional, there is great political utility in allowing the people to vote on the measure. Such a vote communicates clearly to the representative branches of government the popular sentiment on a particular issue or issues.
See Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 917, 802 P.2d 1280, 1282 (1990). Thus, while simultaneously reaffirming the vitality of Caine, we proceeded in Las Vegas Chamber of Commerce to recognize a predominate value in public expression even if an initiative measure is unconstitutional. In brief, Las Vegas Chamber of Commerce represented a policy decision by this court that our decision to intervene in such matters should be strongly tempered by deference to the people‘s right to express themselves through the ballot. Stated otherwise, Las Vegas Chamber of Commerce emphasizes in unmistakable terms this court‘s recognition of the guarantees of freedom of expression and the right to vote as among the most cherished rights conferred by the constitution. In light of our ruling in Las Vegas Chamber of Commerce, the threshold question now should be, why should this court hastily exercise its discretion in order to deprive Nevada voters of the right of expression that we found to be so significant and compelling in Las Vegas Chamber of Commerce?
This matter came to this court slightly less than one month ago. Orderly and measured appellate consideration of the issues presented by the parties has been severely constrained by the need to allot adequate time to election officials to carry out their statutory
The majority concludes that there is no utility in facilitating the needless expenditure of money and other resources in campaigning for and against the measure before us. I remind my colleagues, however, that untold lives and fortunes have been expended in defense of the right to advance ideas and concepts in free elections--a right so cherished that it may not be valued in terms of monetary cost. On the basis of this argument alone, and without due and careful deliberation, I am not prepared to cast aside established precedent reflecting a policy of deference to that fundamental right.
I do not suggest that our established precedents should never be subject to limitation and revision. To the contrary, there may be valid and persuasive reasons to revisit and reexamine our prior holdings. Prior to interdicting the foremost rights of the people, however, due regard for the concept of stare decisis demands that this court devote adequate time to undertake the research and careful consideration necessary to analyze our precedents in cautious, principled, and deliberate manner.
As the majority observes, it is beyond cavil that no single state may supersede, amend or qualify any provision of the United States Constitution. With all due respect, however, I am not prepared to state with absolute assurance that resolution of the questions presented is susceptible to such a superficial and facile analysis. Recently, the Supreme Judicial Court of Massachusetts was faced with the identical federal constitutional issues now before this court. With understandable restraint, the Massachusetts court observed:
The United States constitutional issues presented . . . in addition to being highly complex, are ones which have not as
yet been considered, in any respect, by the United States Supreme Court or by Federal trial or appellate courts. In fact, only one State appellate court has reported a decision regarding the question of political term limitations, and that court declined to formulate an opinion on the Federal issues involved. See Advisory Opinion to the Attorney Gen., 592 So.2d 225 (Fla. 1991). Therefore, for this court to address the questions posed by the Senate regarding the constitutionality of the initiative under the United States Constitution we would have to predict the view the Supreme Court ultimately would take on the issue of Federal term limitations, speculating as well as to the basis on which the Justices would rely to support that view.
See Opinion of the Justices to the Senate, 595 N.E.2d 292, 302 (Mass. 1992). If this court is to be the first to confront the constitutionality of state-imposed federal term limits, it should devote more than mere passing, superficial consideration of the Constitution‘s text, structure and history, as well as the Supreme Court decisions that bear on the question. See Troy Andrew Eid and Jim Kolbe, The New Anti-Federalism: The Constitutionality of State-Imposed Limits on Congressional Terms of Office, 69 Denv. U. L. Rev. 1, 5 (1992).
It is at least arguable that the federal term limits measure could be viewed by the United States Supreme Court as constitutionally valid. By way of illustration, I set forth below a number of questions which lurk below the surface of petitioners’ claims which would seem to require an informed and careful analysis prior to reaching any conclusions concerning the position that will eventually and inevitably be taken by the final arbiter of the subject (absent a constitutional amendment), the United States Supreme Court.
Consideration of the express text of the United States Constitution gives rise to a number of complex questions that demand in-depth analysis. Nowhere in that document is it expressly provided that the states are precluded from imposing conditions on the election of federal legislators. To the contrary, the constitution expressly provides that members of the United States House of Representatives are to be “chosen . . . by the People of the several states,” and that “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” See
The
Provisions in our own constitution, for example, mandate that “[n]o person shall be eligible to any office who is not a qualified elector under this constitution” and that no person may be an elector “who has been or may be convicted of treason or felony in any state . . . unless restored to civil rights . . .” See
I do not suggest affirmative answers to such questions. Nor do I suggest that exhaustive research validates the questions. I do suggest, however, that if it is determined that the constitutional issues need to be decided, there is wisdom in taking the time to see that necessary questions are asked and that sufficient research is undertaken to provide incisive answers before any conclusion respecting the constitutionality of Question 7 can be stated with confidence.
With adequate time, there is little doubt that a thorough examination of other traditional sources of constitutional history would enlighten and inform this court‘s consideration of the issues presented. The cursory research thus far completed by this court indicates that the records of the Constitutional Convention of 1787, the writings of Madison and Hamilton contained in the Federalist Papers, and the writings of the Anti-Federalist pamphleteer Cincinnatus all provide useful insight into the intent of the framers with respect to the questions before us.
A focused review of the history of certain Congressional actions would also seem to be in order. Both the House of Representatives and the Senate have had occasion to address election contests involving alleged violations of state-imposed requirements. See Roderick M. Hills, Jr., A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U. Pitt. L. Rev. 97, 128 (1991). The light in which Congress itself views the import of state-imposed regulations on its members should at least be reviewed.
I note as well that NTL contends that the thirteen-county requirement mandated in
Although I entertain serious doubts respecting the constitutional validity of the ballot question in issue, due to the imperatives of haste and the complexity of the issues, those doubts have not as yet attained that measure of certitude which would permit me to conclude confidently that the initiative is plainly and palpably unconstitutional. See Caine v. Robbins, 61 Nev. 416, 427, 131 P.2d 516, 520 (1942).
Moreover, I suggest that proper appellate procedure would question the necessity or wisdom of reaching the constitutional issues and rushing to be at the forefront of a concern that has yet to be addressed by any of the federal courts. In cases too numerous to list, this court has repeatedly held that it will not consider constitutional issues that are unnecessary to the court‘s determination of the case. See, e.g., Spears v. Spears, 95 Nev. 416, 596 P.2d 210 (1979); Union Pacific R.R. Co. v. Adams, 77 Nev. 282, 362 P.2d 450 (1961); State v. Curler, 26 Nev. 347, 67 P. 1075 (1902). Where, as here, the majority confidently decides that the initiative violates Nevada law, there is simply no basis for reaching issues involving the federal constitution.
Turning to petitioners’ claims relating to the validity of the initiative petition documents, it is at least safe to say that the validity of the documents is problematic. It is also clear that issues surrounding validity include not only challenges to the legality of the language or clarity of the initiative, but also fact intensive problems regarding the validity of signatures. For the most part, petitioners have requested this court to resolve these factual issues on the basis of conflicting affidavits. Ordinarily, of course, an appellate court is not an appropriate forum in which to resolve disputed questions of fact. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). When disputed factual issues are critical to the proper resolution of a request for extraordinary relief, the writ should be sought in the first instance in the district court, with appeal from an adverse judgment to this court. Id. The time constraints applicable here, however, have foreclosed such an orderly and traditional fact-finding process.
It is true that some of the critical facts petitioners have sought to establish by way of affidavits remain uncontroverted. I nevertheless find it difficult to resolve many of these matters with certainty, given the minimal time limits under which the respondent, the initiative proponents, and this court were forced to proceed. And where it is alleged that technical deficiencies render the petition documents a few signatures short of the required
Although disqualifying shortages may exist in one or more counties, we were informed on the eve of oral argument that it has now been determined that signatures previously thought to have been invalid in White Pine County may have now been validated in sufficient numbers to qualify that county for inclusion among the counties that have met the requirements for a valid initiative. Moreover, allegations of deficiency concerning Carson City were raised on the eve of oral argument, and the Secretary of State and NTL had no opportunity to review and refute those allegations. I do not purport to know what the facts may eventually show concerning the various contentions of technical invalidity in certain of the petition documents, but I would most certainly not decide the issues precipitantly in order to prevent our citizens from voting on Question 7.
During oral argument I expressed my concerns regarding the fact that the initiative language made no reference to the measure as an intended means of amending our state constitution. In truth, the language facially suggests an initiative designed to produce a state statute. Although my concerns remain, and the issue is significant, a lingering question prevents me from prematurely accepting the disqualifying conclusion reached by my brethren in the majority. May the lack of clarity be cured by definitive ballot language supplied by the Secretary of State? It seems clear that if the intendments of the initiative are clearly set forth on the ballot, voters will not be misled as they cast their votes on the subject. I respect the fact that an affirmative answer to the question posed could be viewed as a major step in the direction of rendering the formal initiative process unacceptably lax. I emphasize again, however, that in asking the question, I suggest neither the answer nor the validity of the question. I merely underscore the wisdom of those courts that have exercised restraint in favor of the voters rather than disqualifying technicalities.
In my view, where, as here, severe time constraints prevent this court‘s resolution of complex issues without significant disruptions to the election process, any doubts respecting the validity of a proposed initiative should be resolved in favor of allowing the measure to go before the voters. Two centuries of successful democracy in this country amply justify an abiding faith in the wisdom of the electorate to determine such matters in the first instance. See, e.g., Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 917, 802 P.2d 1280, 1282 (1990) (even if an initiative measure is unconstitutional, there is great utility in allowing the people to vote on the measure; such a vote communi-
Nonetheless, as justices we cannot ignore our obligation to protect and defend the paramount law of the nation and of this state. If our citizens had been allowed to vote on Question 7, due regard for our obligation and the electorate would have mandated that the voters of this state be forthrightly apprised of the strong possibility that a public vote in favor of Question 7 may ultimately be declared invalid in future judicial proceedings. Accordingly, I would have had this court direct the Secretary of State to include the following language in the ballot question arguments formulated, pursuant to
The Nevada Supreme Court has expressed strong concern about the validity of Question 7 under both the Nevada State Constitution and the United States Constitution. Voters are cautioned that their vote for or against this measure may ultimately have value only as an expression of public sentiment on the subject.
Such a cautionary instruction regarding the constitutionality of Question 7 would serve to dispel any false expectations among voters who support such restrictions and would encourage term limit advocates and opponents alike to weigh the prospects of an eventual ruling of invalidity as they plan their efforts and expenditures on the measure.
CONCLUSION
I have carefully avoided irrelevant inferences concerning the merits of term limitations on federal legislators. This court has no legitimate interest in the wisdom of the proposed measure, and would indeed be presumptuous to assume that its members possess greater insights on the subject than our voting citizens. Rather, my major concerns have focused on the fundamental right of our citizens to access the ballot. The Secretary of State has determined that 32,853 Nevadans have requested that federal term limits be placed before the people on the November 1992 general election ballot. My colleagues in the majority speculate that the signatures were induced by “mercenaries.” I am far more interested in the fact that such large numbers of our citizens have indicated a desire to have the measure placed on the ballot than I am the citizenship of those who labored in the initiative process.
This court was faced with two basic alternatives: the exercise
For the reasons abbreviated above, I would deny the relief requested in the instant petition, and vacate our prior order of August 19, 1992, granting an alternative writ and imposing a stay. Further, I would direct the clerk of this court to issue a writ of mandamus directing the Secretary of State to include the aforementioned cautionary language in the arguments presented on the ballot both for and against passage of Question 7, and let our people vote.