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Ramsey v. City of North Las Vegas

Supreme Court of Nevada

April 13, 2017

HONORABLE CATHERINE RAMSEY, NORTH LAS VEGAS MUNICIPAL JUDGE, Appellant,
v.
THE CITY OF NORTH LAS VEGAS; BARBARA A. ANDOLINA, CITY CLERK OF NORTH LAS VEGAS; BETTY HAMILTON; MICHAEL WILLIAM MORENO; AND BOB BORGERSEN, INDIVIDUALLY AND AS MEMBERS OF "REMOVE RAMSEY NOW, " Respondents.

         Appeal from a district court order denying injunctive relief and dismissing an action concerning the recall of a public officer. Eighth Judicial District Court, Clark County; Eric Johnson, Judge.

          Mueller Hinds & Associates, Chtd., and Craig A. Mueller and Steven M. Goldstein, Las Vegas, for Appellant.

          Snell & Wilmer, LLP, and Patrick G. Byrne, Richard C. Gordon, and Daniel S. I vie, Las Vegas, for Respondents the City of North Las Vegas and Barbara A. Andolina, City Clerk of North Las Vegas.

          Gentile, Cristalli, Miller, Armeni & Savarese and Dominic P. Gentile, Colleen E. McCarty, and Ross J. Miller, Las Vegas, for Respondents Betty Hamilton, Michael William Moreno, and Bob Borgersen, individually and as members of Remove Ramsey Now.

          Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Amicus Curiae Nevada Judges of Limited Jurisdiction.

         BEFORE THE COURT EN BANC [1]

          OPINION

          HARDESTY, J.

         In 1976, amid growing concern that no central administrative authority existed to unify Nevada courts and that this state's judges were not being held to uniform and consistent standards, Nevada's voters approved the creation of the Commission on Judicial Discipline (the Commission) through constitutional amendment to provide for a standardized system of judicial governance. This amendment provides for the removal of judges from office as a form of discipline. Thus, in conjunction with the Commission's creation, a new Code of Judicial Conduct was developed with the expectation that these measures would promote judicial independence and political neutrality, while at the same time improving the public's ability to hold judges accountable for their conduct in office.

         A group of individuals within the City of North Las Vegas seeks to remove a municipal judge, not through the system of judicial discipline established by the majority of voters in 1976, but through a special recall election. Whether the existing state constitutional provision providing for the recall of "public officers, " Article 2, Section 9, applies to judges has not been previously considered by this court. However, 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.

         FACTUAL AND PROCEDURAL HISTORY

         At the 2011 local election, City of North Las Vegas voters elected appellant Catherine Ramsey to a six-year term as a municipal judge. Before Ramsey's term expired, a group called "Remove Ramsey Now"[2] created a recall petition seeking to force an election to remove her from office. The group alleged that Ramsey improperly used city assets for personal use, was excessively absent from work, and mistreated staff and other people in her courtroom.[3] After gathering signatures, Remove Ramsey Now submitted the recall petition for verification to respondent Barbara Andolina, city clerk for respondent City of North Las Vegas. Sufficient signatures were certified, and the Secretary of State deemed the petition qualified.

         Ramsey sought an emergency injunction from the district court and also later filed a complaint challenging the legal sufficiency of the recall petition. Ramsey argued that judges are not "public officers" subject to recall under Article 2, Section 9 of the Nevada Constitution, and that even if they once were, the voters' approval of the judicial discipline process in 1976 superseded all other forms of judicial removal except legislative impeachment. She also asserted that various issues with respect to notice of the signature verification process and the form of the petition violated her constitutional rights and invalidated the petition.

         The district court consolidated the two actions. After a two-day evidentiary hearing, the district court denied all of Ramsey's claims, concluding that judges were public officers subject to recall under the Nevada Constitution and that Ramsey's rights ultimately were not violated. Ramsey now appeals.

         DISCUSSION

         This court reviews questions of constitutional interpretation de novo. Lawrence v. Clark Cty., 127 Nev. 390, 393, 254 P.3d 606, 608 (2011). In interpreting an amendment to our Constitution, we look to rules of statutory interpretation to determine the intent of both the drafters and the electorate that approved it. Landreth v. Malik, 127 Nev. 175, 180, 251 P.3d 163, 166 (2011); Halverson v. Sec'y of State, 124 Nev. 484, 488, 186 P.3d 893, 897 (2008). We first examine the provision's language. Landreth, 127 Nev. at 180, 251 P.3d at 166. If plain, we look no further, but if not, "we look to the history, public policy, and reason for the provision." Id. When so doing, we keep in mind that "a contemporaneous construction by the [L]egislature of a constitutional provision is a safe guide to its proper interpretation and creates a strong presumption that the interpretation was proper, " because it is likely that legislation drafted near in time to the constitutional provision reflects the constitutional drafters' mindset. Halverson, 124 Nev. at 488-89, 186 P.3d at 897 (internal quotations omitted); Porch v. Patterson, 39 Nev. 251, 260, 156 P. 439, 442 (1916) (Coleman, J., dissenting) (same).

         I.

         Voter recall of "public officer[s]" has been available in Nevada since Article 2, Section 9 of the Nevada Constitution was adopted in 1912. In its current form, the article provides, in part, that

[e]very public officer in the State of Nevada is subject, as herein provided, to recall from office by the registered voters of the state, or of the county, district, or municipality which he represents.

         To force a recall election, at least 25 percent of the number of voters voting in the election in which the subject official was elected must sign a petition demanding the public officer's recall and setting forth the reasons therefor. Nev. Const, art. 2, § 9. If the public officer does not resign, a special election must be held. Id.

         The term "public officer" is not expressly defined in the Nevada Constitution, and no prior judicial decision by this court has considered whether judges are within the scope of Article 2, Section 9. However, other states with similar constitutional provisions have decided, either expressly or impliedly, that "public officers" include judges.

         Idaho and Washington each added amendments providing for the recall of "public officers" at around the same time Nevada adopted Article 2, Section 9. See Idaho Const, art. VI, § 6 (added 1911, ratified 1912); Wash. Const, art. I, § 33-34 (adopted by amendment 1911, approved 1912). Article VI, Section 6 of Idaho's constitution provides that "[e]very public officer . . ., excepting the judicial officers, is subject to recall." Similarly, Article I, Section 33 of Washington's constitution provides that "[e]very elective public officer in the state of Washington expect [except] judges of courts of record is subject to recall, " (Alteration in original). Idaho's and Washington's explicit exclusion of judges from their respective recall provisions implies that judges are included in the term "public officer."

         Arizona, Colorado, and Oregon also adopted constitutional; recall provisions around the same time as Nevada, which also use the term "public officer, " but did not specifically exclude judicial officers. See Ariz. Const, art. VIII, pt. 1, § 1; Colo. Const, art. XXI, § 1; Or. Const, art. II, § 18(1). In each of these states, the courts implicitly concluded that members of the judiciary were considered public officers and thus subject to recall pursuant to their constitutions. See Abbey v. Green, 235 P. 150, 152 (Ariz. 1925); Marians v. People ex rel. Hines, 69 P. 155, 155 (Colo. 1917); State ex rel. Clark v. Harris, 144 P. 109, 110 (Or. 1914).

         We, like our sister states, believe that judges are public officers for purposes of Nevada's constitutional recall provision adopted in 1912. However, even if judges originally could be recalled, Ramsey argues j that the creation of the Commission in 1976 superseded any such recall authority over judges. We agree.

         II.

         A.

         Nevada voters entrusted the Commission with the power to remove judges from office under Article 6, Section 21. In 1967, the Nevada Legislature convened a commission to complete a comprehensive study of the organization and structure of the Nevada court system. Legislative Commission of the Legislative Counsel Bureau, Nevada's Court Structure, Bulletin No. 74, at 23 (1968) (citing S. Con. Res. 18, 54th Leg. (Nev. 1967)).[4] In exploring the election and removal of judges with a view toward promoting an independent judiciary under a uniform court system, the legislative commission recommended modifying the court structure in two major respects. First, it suggested that the system be changed so that judges were appointed, rather than elected. Id. at 31-32. Second, the legislative commission recognized that election was also an ineffective and haphazard way to remove judges who were not performing their duties, and that an impartial removal process conducted by an informed, investigative body was necessary. Id., at 33-34. The legislative commission believed that a board comprised of laypersons and judges alike should be able to investigate complaints against a judge and would be in a better position to evaluate the performance of a judge and recommend corrective action, if warranted. Id. at 33.

         Around the same time, various bills in the Legislature introduced the idea of the Commission, a neutral board that would have authority to discipline and remove judges from office. See Hearing on A.J.R. 5 Before the Assembly Judiciary Comm. 54th Leg. (Nev., March 29, 1967) (no action-held for future bill); Hearing on S.J.R. 23 Before the Senate Judiciary Comm., 55th Leg. (Nev., March 20, 1969) (complete revision of Article 6, defeated by the voters in 1972); Hearing on S.J.R. 23 Before the Senate Judiciary Comm., 56th Leg. (Nev., January 19, 1971) (same); Hearing on A.J.R. 16 Before the Assembly Judiciary Comm., 57th Leg. (Nev., March 6, 1973) (proposed creating the Commission only); Hearing on A.J.R. 16 Before the Assembly Judiciary Comm., 58th Leg. (Nev., May 6, 1975) (same; enrolled and delivered to Secretary of State and approved by voters in 1976). Although the voters rejected a large-scale revision of the court structure in 1972, including a plan to appoint judges, they individually approved several aspects of that revision in 1976, including vesting this court with authority over all other Nevada courts and the creation of the Commission. Nev. Const, art. 6, §§ 19, 21.

         As enacted in 1976, Article 6, Section 21(1) states, in relevant part, as follows:

A justice of the [S]upreme [C]ourt, a district judge, a justice of the peace or a municipal judge may, in addition to the provision of Article 7 for impeachment, be censured, retired, removed or otherwise disciplined by the commission on judicial discipline.

(Emphasis added.)[5] The emphasized language providing the single exception-for impeachment by the Legislature under Article 7-is, Ramsey asserts, proof that all other means of removing judges were superseded when the Nevada Constitution was amended to create the Commission.

         To solidify the process of judicial discipline, along with the Commission as the enforcer of such discipline, work began in 1975 to create a comprehensive and enforceable code of judicial conduct, fashioned after the model code adopted by the American Bar Association. Hearing on S.B. 453 Before the Assembly Judiciary Comm., 59th Leg. (Nev., April 20, 1977). The resulting Nevada Code of Judicial Conduct (NCJC) was adopted in 1977. NCJC (1977). Testimony during the legislative hearing confirmed that the NCJC was intended to further the Legislature's goals of unifying the court system in an arrangement under which all judges were held to the same standards, enforced by the Commission and this court. Hearing on S.B. 453 Before the Assembly Judiciary Comm., 59th Leg. (Nev., April 20, 1977) (testimony of Judge Richard Minor, President, Nevada Judges Association); see also Hearing on S.B. 453 Before the Senate Judiciary Comm., 59th Leg. (Nev., April 13, 1977) (Ex. B, letter from Justice E.M. Gunderson to Governor Mike O'Callaghan).[6]

         The legislative history demonstrates that, at the time Article 6, Section 21 was approved by the voters, the Commission was viewed as integral to protecting the judiciary's independence throughout the unified court system by providing a means by which all judges would be held to objective, established standards enforced in a consistent manner. Given this history and the seemingly intentional decision by the Legislature as the drafters of the constitutional amendment to omit any reference to recall in Article 6, Section 21, the provision must be read as the exclusive means of judicial removal except for legislative impeachment.

         B.

         On its face, Article 6, Section 21 expressly retains legislative impeachment as a means of removal but does not mention the Article 2, Section 9 recall provision. We are compelled to conclude that Article 6, Section 21 can be read no way other than as providing the exclusive means for judicial ...


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