ISABEL KIMBLE, BRUCE BLACKADAR, MARY FRAZZINI, THEODORE OLESON, Jr., and MARJORIE da COSTA EASTMAN, Appellants, v. WILLIAM D. SWACKHAMER, Secretary of State of the State of Nevada; and LEGISLATIVE COMMISSION OF THE STATE OF NEVADA, Intervener, Respondents
Kimble v. Swackhamer
Batjer, C. J., and Mowbray and Manoukian, JJ., concur.
ISABEL KIMBLE, BRUCE BLACKADAR, MARY FRAZZINI, THEODORE OLESON, Jr., and MARJORIE da COSTA EASTMAN, Appellants, v. WILLIAM D. SWACKHAMER, Secretary of State of the State of Nevada; and LEGISLATIVE COMMISSION OF THE STATE OF NEVADA, Intervener, Respondents.
ISABEL KIMBLE, BRUCE BLACKADAR, MARY FRAZZINI, THEODORE OLESON, Jr., and MARJORIE da COSTA EASTMAN, Appellants, v. WILLIAM D. SWACKHAMER, Secretary of State of the State of Nevada; and LEGISLATIVE COMMISSION OF THE STATE OF NEVADA, Intervener, Respondents.
No. 10650
September 19, 1978
584 P.2d 161
Phyllis Halsey Atkins, Reno, for Appellants.
Robert List, Attorney General, and Donald Klasic, Deputy ■Attorney General, Carson City, for Respondent Secretary of State.
Frank W. Daykin, Carson City, for Respondent Legislative Commission.
OPINION
By the Court,
Thompson, J.:
At issue is the constitutionality of chapter 174, 1977 Nev. Stats., which requires the submission of an advisory question to the registered voters of this state on the ratification of the proposed amendment to the Constitution of the United States commonly known as the equal rights amendment. It is asserted that the chapter violates article V of the federal constitution. The district court found no constitutional infirmity. For reasons hereafter expressed we agree with that court and, therefore, affirm the judgment entered below.
The advisory question to be presented at the 1978 general election is set out in section 4 of the chapter. It is:
"Do you recommend that the Nevada legislature ratify the following proposed amendment to the United States Constitution, commonly known as the equal rights amendment?
"Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
"Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
"Sec. 3. This amendment shall take effect two years after the date of ratification.
"YES.... NO...."
Section 3 and section 5 of the chapter each expressly state that "the result of the voting on this question does not place any legal requirement on the legislature or any of its members." Section 6 directs the secretary of state to certify the result of the votes cast on the question to the president of the senate and the speaker of the assembly as the recommendation of the registered voters of the state. Thus, the legislature may vote for or against ratification, or refrain from voting on ratification at all, without regard to the advisory vote.
Article V of the federal constitution divests the people of authority to themselves ratify amendments to the federal constitution. Such power is limited to two methods, by action of the legislatures of three fourths of the states, or conventions in a like number of states. Hawke v. Smith, 253 U.S. 221 (1920).
The appellants contend that chapter 174, in practical effect, grants the registered voters of Nevada the authority to ratify the proposed equal rights amendment to the federal constitution since we may presume that the legislature will be governed by the outcome of the advisory vote if, perchance, it recommends ratification. However, the cases upon which they mainly rely in presenting this contention are not supportive. Those cases are Hawke v. Smith, supra, and Leser v. Garnett, 258 U.S. 130 (1922).
Hawke held that there could be no referendum upon the decision of a state legislature to ratify or reject a proposed amendment to the federal constitution. And Leser merely held that the function of a state legislature in ratifying a proposed amendment to the federal constitution was a federal function transcending any limitations sought to be imposed by the people of the state.
Chapter 174 does not concern a binding referendum, nor does it impose a limitation upon the legislature. As already noted, the legislature may vote for or against ratification, or refrain from voting on ratification at all, without regard to the advisory vote. The recommendation of the voters is advisory only. In re Estate of Hogan, 146 N.W.2d 257, 259 (Iowa 1966). To recommend does not mean to bind. Fletcher v. Porter, 21 Cal.Rptr. 452, 454 (Cal. D.C.A. 1962). Consequently, we find it wholly impossible to construe chapter 174 as a limitation on legislative power violative of article V of the federal constitution. Rather, the chapter simply specifies a means by which to assist the legislature whether to consent or not to consent to the proposed amendment. The following words of Dyer v. Blair, 390 F.Supp. 1291, 1307 (N.D.Ill. 1975), are apposite to the case at hand:
"Article V identifies the body — either a legislature or a convention — which must ratify a proposed amendment. The act of ratification is an expression of consent to the amendment by that body. By what means that body shall decide to consent or not to consent is a matter for that body to determine for itself. This conclusion is not inconsistent with the premise that the definition of the term "ratified" is a matter of federal law. The term merely requires that the decision to consent or not to consent to a proposed amendment be made by each legislature, or by each convention, in accordance with procedures which each such body shall prescribe."
Affirmed.
Batjer, C. J., and Mowbray and Manoukian, JJ., concur.
Article. V.: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate."
Other cases dealing with a binding referendum on prior legislative action ratifying a proposed amendment to the federal constitution are: Barlotti v. Lyons, 189 P. 282 (Cal. 1920); In re Opinion of the Justices, 107 A. 673 (Me. 1919); Decher v. Vaughan, 177 N.W. 388 (Mich. 1920); Hatch v. Murray, 526 P.2d 1369 (Mont. 1974). In each instance, the court found a violation of article V of the federal constitution.
Limitations upon legislative power to ratify or refuse to ratify a proposed federal amendment likewise are in violation of article V. Trombetta v. State of Florida, 353 F.Supp. 575 (M.D.Fla. 1973); State ex rel. Tate v. Sevier, 62 S.W.2d 895 (Mo. 1933); Walker v. Dunn, 498 S.W.2d 102 (Tenn. 1972).
One case, Opinion of the Justices, 160 N.E. 439 (Mass. 1928), may be read to support the proposition that a non-binding procedure is violative of article V. We reject that opinion as unsound, and not supported by the authorities relied upon by the Massachusetts court.