Constitutional scholars Eleanore Bushnell and Don Driggs once wrote that Nevada has an unusual number of ways to remove judges from office – “recall, impeachment, legislative removal, and removal by the Commission on Judicial Discipline. The number of methods contrast sharply with the federal system, wherein a judge may be removed only through the impeachment process.”
In April, the Nevada Supreme Court ruled in a North Las Vegas case that Nevada’s constitutional voter recall law no longer applies to judges.
“Even if the recall of public officers provision is interpreted to include judges, we conclude that the voters’ subsequent approval of the system for judicial discipline, which plainly grants the commission the exclusive authority to remove a judge from office with only one exception, the legislative power of impeachment, supersedes any provision that would allow for judges to be recalled by other means,” Justice James Hardesty wrote for the majority.
Why conclude that? Why would adding a fourth method of removing judges from office void a previous method that still remains in the law? Hardesty does not explain.
Nevada’s founders in 1864 wrote two methods of removing judges into the Nevada Constitution – impeachment for serious crimes and legislative removal for bad judgment.
In 1908, Nevadans voted to add another method of removal – recall by the voters. That addition did not void either of the two original methods.
In 1976, Nevadans voted to add still another removal method – creation of a state Judicial Discipline Commission. If the 1908 addition of a removal method left the previous methods intact, why didn’t the 1976 addition do the same? The legislature drafted the constitutional amendment creating the commission, and it would have been easy for lawmakers to add, “Creation of the commission ends the application of voter recall to the judiciary” or some such. They did not do so.
Justices sometimes must reach conclusions about laws that are in CONFLICT with each other, but that is not the case here. The 1908 and 1976 enactments are in CONCERT with the Constitution written by the founders, who wanted multiple methods of removal. The justices’ conclusion IS in conflict with that founders’ scheme.
Hardesty mentions the 1975 legislative history of the Judicial Discipline Commission five times, but never quotes a single word of that legislative debate – and I do not recall any statement by any state legislator at that Legislature that called for the Discipline Commission to displace an earlier method of removal without repealing that earlier language.
I was there and wrote about the legislation. Even if there were legislative history proposing such a thing, legislative history cannot trump constitutional convention history. In the absence of a conflict between two laws, we are left with justices using raw judicial power to overturn a law in which they have a personal interest. And it’s not the first time.
Constitutional changes proposed by initiative petition must be approved by Nevada voters twice in consecutive elections. In the 1994 election, an initiative ballot measure providing for term limits for Nevada officials was approved by the voters in first-round voting. But before the 1996 election, the Nevada Supreme Court ordered that the measure be split into two.
Judges would be voted on in one measure, all other officials in another. This split not only was not permitted by the Nevada Constitution. It is specifically forbidden. But the judges did it anyway, and in the second, 1996 round of voting, the voters approved the measure limiting terms for other officials but voted down term limits for judges.
A liberal leader of my acquaintance once read a Nevada Supreme Court opinion that said the Reno mayor’s post and Reno city council seats are effectively the same office, activating city council term limits against mayor candidates who had served as council members.
The ruling flew in the face of nearly all precedents (including a Nevada Supreme Court ruling) and the court refused a subsequent petition asking it to explain itself. Liberals are traditionally very supportive of the courts. My friend told me, “The Nevada Supreme Court keeps making it more difficult for us to support them. But maybe it doesn’t matter. They take care of themselves nicely.”
Dennis Myers is an award-winning journalist who has reported on Nevada’s capital, government and politics for several decades. He has also served as Nevada’s chief deputy secretary of state.