FELIX F. STUMPF, FAUN DIXON, and DONALD CARLSON, Petitioners, v. CHERYL A. LAU, in Her Capacity as Secretary of State, Respondent
Stumpf v. Lau
Rose, J., and Handelsman, D. J. concur.
FELIX F. STUMPF, FAUN DIXON, and DONALD CARLSON, Petitioners, v. CHERYL A. LAU, in Her Capacity as Secretary of State, Respondent.
FELIX F. STUMPF, FAUN DIXON, and DONALD CARLSON, Petitioners, v. CHERYL A. LAU, in Her Capacity as Secretary of State, Respondent.
No. 23517
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.
The Honorable John Mowbray, Chief Justice, voluntarily recused himself from participation in the decision of this matter. The Honorable Mark Handelsman, Judge of the Second Judicial District Court, was therefore designated by the Governor to sit on this case, and has participated in its decision after full review of all briefs, the record, the exhibits and the recording of the oral argument heretofore heard by the court. Nev. Const. art. 6, § 4.
OPINION
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. The writ was issued on three grounds. First, it appeared that if the initiative were approved by the voters, Nevada would be approving a law or an amendment of the state constitution that was violative of the United States Constitution and clearly beyond the powers of this state to enact. Second, it appeared that the initiative failed to gather sufficient valid signatures to qualify under the Nevada Constitution for placement on the ballot. Third, it appeared that the initiative was so poorly drafted that signers of the initiative petition were not advised as to whether they were seeking enactment of a law or an amendment to the Nevada Constitution. Mandamus is the proper remedy in such controversies. See, e.g., Lundberg v. Koontz, 82 Nev. 360, 418 P.2d 808 (1966) (in challenge to legal sufficiency of an initiative petition this court issued an alternative writ of mandamus which the court later made permanent).
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 Article I of the United States Constitution. No case authority has been offered in support of the novel proposition that this or any state has the power to impose qualifications for federal office provided for in the United States Constitution. Again, the only question is whether, under these circumstances, the people should vote on a moot issue.
Citing our recent decision in Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 802 P.2d 1280 (1990), respondent and the Nevadans for Term Limits ("NTL") contend that this court should decline to determine whether the federal term limits initiative violates the United States Constitution. Our decision in Las Vegas Chamber of Commerce, however, did not overrule our holding in Caine, a holding which has "remained inviolate in an unbroken line of cases that has stood for almost fifty years." Las Vegas Chamber of Commerce, 106 Nev. at 916, 802 P.2d at 1281. To the contrary, this court twice cited Caine with approval in the Las Vegas Chamber of Commerce case. Caine stands today and has stood ever since its issuance in 1942 for the proposition that a ballot question may be enjoined by this court 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, 137 P.2d at 519 (quoting Gray v. Winthrop, 156 So. 272 (Fla. 1934)). See also Advisory Opinion to the Atty. Gen., 592 So.2d 225, 229 (Fla. 1991) (Overton, J., dissenting in part and concurring in part).
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.
Id. at 427, 131 P.2d at 520.
II
Failure of Initiative to Define Nature or Purpose of Proposed Enactment
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[]." Nev. Const. art. 19, § 3(1). When a constitutional amendment is being proposed, one would expect to find, after recital of the required enacting clause, some kind of proposal or declaration that the constitution was being amended, thus: "The People of the State of Nevada do enact as follows: The Constitution of Nevada, Article _, Section _, is hereby amended to read as follows: '_' " Without language specifying whether the initiative is intended to create a law, amend a law or amend the constitution, the Secretary of State has no guidance as to how the ballot proposition is to be drafted. This failure to specify the nature and purpose of the initiative is qot merely an obscurity of language; it is a fatal omission that effectively prevents the signers from knowing what they are signing. If initiative petition signers are petitioning for enactment of a state law, the petition should state that law enactment is what the petition is about. If the petition signers are going further and seeking to amend the state constitution, certainly they should say this in their petition and not leave the choice up to the Secretary of State. The idea that all a petition for initiative must contain is a loose collection of ideas that can be crafted into legislative or constitutional form by the Secretary of State is contrary to the basic nature of the initiative process. Article 19, section 2(1) of the Nevada Constitution gives to the people "the power to propose . . . amendments to this constitution . . . .''If the people are going to propose an amendment to the constitution, they must propose an amendment as an amendment to the constitution and not as a mere law nor as a loosely worded aggregate of ideas and philosophical ruminations. The initiative petition before us is not even ambiguous. It refers to a law, an act, not a constitutional amendment. ("This act may be cited and referred to as the 'Term Limitation Act of 1992.' " (Emphasis added.)) It is not difficult to find case authority for the proposition that an initiative petition signer must be informed at the time of signing of the nature and effect of that which is proposed. "Failure to so inform the signatories and voters is deceptive and misleading, and therefore the Petition is invalid." In re Initiative Petition No. 344, 797 P.2d 326, 330 (Okla. 1990). "We cannot assume that people are indifferent whether they are asked to approve an ordinary law or to amend their constitution." Oregon State Homeowner's Ass'n v. Roberts, 703 P.2d 954, 955 (Or. 1985).
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.
Ill
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 article 19, section 3 of the Nevada Constitution? The answer is clearly, "no," and since these documents do not contain the required affidavit, they must be discarded.
Article 19, section 3(1) of the Nevada Constitution requires that "each signer" of an initiative petition must affix the signature, residence address and "the county in which he or she is a registered voter." The constitution goes on to provide that "each document" of the petition must have an affidavit "made by one of the signers of such document . . . ." (Emphasis added.) The necessary and indispensable affidavit must say that (1) all of the signatures are genuine and (2) "that each individual who signed such document was at the time of signing a registered voter . . . ." (Emphasis added.) Because Ms. Smith in Lyon County and Mr. Harvey in Carson City were not registered voters at the time that they signed the petition, they clearly were not signers as defined by the Nevada Constitution. Only registered voters can be signers; and since they were not registered voters at the time, they could not be signers. The validating affidavit on each document must be "made by one of the signers of the document." It is a legal impossibility for either Ms. Smith or Mr. Harvey to have been a "signer" at the time they put their signatures to the documents in question; hence, they were not qualified under our constitution to execute the validating affidavit that is required by the constitution. There can be no argument about this. This is not a matter of appellate fact-finding. This is not a matter that need be sent back to the trial court for hearing. The record is plain. No one has suggested that the signers of the subject affidavits were in fact registered voters at the time they signed the petition documents and were thus qualified to make the validating affidavit.
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.
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 United States. Obviously, the people of this state, either by ordinary act or by constitutional amendment adopted through the initiative process, are not empowered to intrude into this clearly federal ground. It is also apparent that the initiative petition now before us is totally ineffective as an instrument of constitutional amendment; and, finally, the petition has an insufficient number of valid signatures. Still, we hear the cry that we should ignore all of this and let the matter go on the ballot "just to see what would happen." Those who make this idle demand should reflect upon the consequences of this court's falling away from its clear duty to interpret and enforce the law. Must those who are right, those who have come to us to tell us correctly that this proceeding is constitutionally insupportable under either the Nevada or the United States Constitution, be turned away, while we rule in favor of those who want us to let an almost admittedly ineffective initiative proceeding take its course through the elective process? We need not calculate or estimate the cost of playing such games to predict that necessarily either side of this issue will be expected to expend substantial funds on political advertising and considerable human energy in furthering one side of this issue or the other. It is interesting to speculate as to just when those who urge that this proposition remain on the ballot would wish us to perform our judicial duties if we do not perform them now. It is, of course, possible that the measure would fail in one of the elections. This would diminish the amount of unnecessary mischief brought about by our failure to exercise our judicial duties in a timely way, depending, of course, on when the measure failed. If the measure were to fail on the second ballot, it is certain that large sums of money and human resources would have been expended in the first balloting for advancing either side of this invalid proposition. The most harm would be done, however, if the measure passed in two elections, and this court were then asked in some later legal maneuver to tell the voters that their vote was of no effect and that we knew all along that they were voting on a measure that was contrary to the provisions of the United States Constitution, and was based on an invalid petition that had been worded and circulated in a manner that did not conform to the Nevada Constitution. Were we, at a later date, after the voters had twice approved the measure, to declare that the term limit proposition was, just as its proponents suggest, merely a straw poll and of no legal force or effect, the people of this state would be understandably and justifiably outraged and enraged at such irresponsibility on the part of the highest court in this state. As put by the Oklahoma Supreme Court last month when it removed an initiative question from the ballot because it would have, if enacted, violated the United States Constitution: "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. concur.
The initiative reads as follows:
TERM LIMITATIONS FOR FEDERAL OFFICE HOLDERS.
Section 1 This act may be cited as and referred to as, the "Term Limitation Act of 1992."
Section 2 Findings and declarations: The people of the State of Nevada hereby find and declare as follows:
Section 2.1 Federal representatives who remain in office for extended periods of time become preoccupied with their own reelection and for that reason devote more effort to campaigning for their office than making legislative decisions for the good of the people of Nevada;
Section 2.2 Federal representatives have become too closely aligned with the special interest groups who provide contributions and support their reelection campaigns, provide special favors and intense lobbying, all of which causes [sic] corruption or the appearance of corruption of the legislative system;
Section 2.3 Entrenched incumbency has discouraged qualified citizens from seeking office and leads to a lack of competitiveness and a decline in robust debate on issues important to the people of Nevada;
Section 2.4 Due to the appearance of corruption and the lack of competitiveness for entrenched incumbency seats, there has been a reduction in voter participation which is counter-productive in a representative democracy;
Section 2.5 The people of the State of Nevada have determined that the declarations and findings contained herein threaten their vital interest in maintaining the integrity of their federal office holders and avoiding the appearance of corruption and lack of response to the needs of the people of Nevada. It is their purpose and intent in enacting this law that term limitation is the best method by which to insure that these vital interests are guarded for the people of the State.
Section 3 Notwithstanding any other provision of Nevada law, the Secretary of State or other authorized official, will not accept or certify a person's nomination petition, nor print or cause to be printed on any ballot or ballot label for the office specified, the name of any person, if any of the following shall occur:
Section 3.1 The person who by the end of the current term of office will have served, or but for resigntion, would have served as a representative from Nevada to the United States House of Representatives for six (6) or more years in any twelve (12) year period of time, except that, any time served in the United States House of Representatives, prior to January 1, 1995, shall not be counted for purpose [sic] of this term limit.
Section 3.2 The person who by the end of the current term of office will have served, or but for resignation, would have served as a representative from Nevada to the United States Senate for twelve (12) or more years in any twenty-four (24) year period, except that, any time served in the United States Senate, prior to January 1, 1995, shall not be counted for purposes of this term limit.
Section 4 The term limit set forth in Section 3 above shall apply only to the specific office referenced in which the person previously served. It is not the intent that this act preclude or prohibit a person from seeking nomination or election to any other office for which the referenced term limits are not applicable.
Section 5 If any part of this measure or the application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or application, [sic] which reasonably can be given effect without the invalid provision or applications.
See U.S. Const. art I, § 2, cl. 2; U.S. Const. art. I, § 3, cl. 3.
The dissent suggests that our decision will disenfranchise the voters and prevent them from participating in a groundswell of support for federal term limits. No citizen has a right to participate in a "straw poll" on an amendment to the State Constitution that clearly violates the United States Constitu tion. When a proposal is obviously unconstitutional, permitting a vote on the matter will lead only to the creation of false hope and, if passed, eventual anger and disillusionment when the measure is declared unconstitutional. It is far better to "bite the bullet" now, strike the measure from the ballot, and avoid the expense and any false expectations for the proposal.
There are a fairly large number of other jurisdictional defects which probably would be established where time available. The petition effort appears to have been conducted by mercenaries from outside of the state. A number of petitions fail to state the proper date or to state the county name. One petition document in Washoe County contains an unsigned affidavit which was nonetheless notarized as having been " [subscribed to before [the notary]." Since the deficiencies in Carson City and Lyon County are so apparent and indisputable, we do not give further consideration to the remaining defects.