The ironies of the term-limits debate

Now that term limits are back in the news — with the surprising ruling that a person who serves 12 years on a local government body is done, regardless of whether he or she is serving as a council member or mayor — it may be a good time to delve into some of the truly classic ironies of term limits in Nevada.

Irony No. 1: Judges were supposed to be included! That’s right, when the term-limits initiative was first qualified for the ballot, all elected officials in the state — including judges — were subject to term limits. When the measure passed on the 1994 ballot overwhelmingly (70 percent yes to 30 percent no), the question was whether term limits should be established for “state and local public officers,” with no exceptions made for judges or justices of the Supreme Court.

But two years later, things changed. The Nevada Supreme Court ruled in the case of Nevada Judges Association v. Lau that the term-limits question should be split, asking voters in one question about term limits for “state and local elected officials in the executive and legislative branches of government,” and in another, separate question about justices and judges. And wouldn’t you know it: In 1996, voters said yes overwhelmingly to term limits for politicians, albeit by a much smaller margin than two years earlier (54,3 percent yes to 45.7 percent no) but overwhelmingly rejected term limits for judges (59 percent to 41 percent).

How about that, huh?

Irony No. 2: Members of Congress were supposed to be included, too! The 1994 ballot included Question 8, which asked voters if the Nevada Constitution should be amended to establish term limits for members of Congress, too. And the question passed by nearly the same margin and term limits for everybody else — 70 percent to 30 percent.

But two years later, thanks to the U.S. Supreme Court decision in the Arkansas case of U.S. Term Limits v. Thornton, the question of amending Nevada’s Constitution to limit terms for federal office holders was moot. The high court held that state restrictions on members of Congress run contrary to “fundamental principles of our representative democracy” and was inconsistent with the vision of the framers of the U.S. Constitution for a national legislature representing the people. If term limits were to be established for federal lawmakers, the court ruled, the U.S. Constitution should be amended.

Not only that, but a 1995 attorney general opinion issued by then-AG Frankie Sue Del Papa concluded that the question may not appear on the 1996 ballot.

As a result, an alternative Question 16 was posed in 1996: Should the Nevada Constitution be amended to call upon Nevada’s congressional delegation and members of Congress to establish term limits, either through an act of Congress or a national constitutional convention. It passed, 53 percent to 47 percent.

Thus far, no serious move to amend the U.S. Constitution to establish federal term limits has been attempted.

UPDATE: Irony No. 2A: It was supposed to take effect sooner. The actual language of the term limit petition — now the language of our state Constitution, in Article 4, Section 3(2), Article 4, Section 4(2) and Article 15, Section 3(2) — is phrased thus: “No person may be elected to any state office or local governing body who has served in that office, or at the expiration of his current term if he is so serving will have served, 12 years or more, unless the permissible number of terms or duration of service is otherwise specified in this Constitution.”

Clearly, the language intends to count years already spent in office toward the term limits, so that long-serving officials would have to immediately decide to run for other offices or retire. But that section was undone, thanks to another attorney general opinion (96-23) that concluded that because state lawmakers’ terms begin on the day after the election (in 1996, that would have been Nov. 6, 1996) and because the initiative wasn’t effective until the canvass of the vote by the state Supreme Court (which took effect that year on Nov. 27, 1996), the terms of state lawmakers would not come under term limits until the elections of 1998, two years later. The language of the petition, which became the language of the constitution, that appears to have a retroactive effect doesn’t appear to have been specifically analyzed, but for all intents and purposes, the clocked started ticking in 1998 for state officials.

(It was another matter for local officials, most of whom served terms starting in January; because the term limits rule was in effect by January 1997, officials elected in November 1996 but who didn’t take office until January saw the term limit clock start ticking immediately. This cost several officials their seats in 2008.)

Irony No. 3: Silence is not golden. During the legal fight over whether term limits applies separately to members of a city council and the mayor, or equally to both, there was conspicuous silence from the Nevada League of Cities and Municipalities, a group that claims it is organized as “the state’s primary champion of local government.”

But the league was strangely silent in the case, not bothering to offer an amicus curiae brief in defense of the idea that mayors constitute a separate office, and thus service on the city council should not count against service in the office of mayor. And it wasn’t just that the league was silent. The Nevada Supreme Court invited the group to participate, “but the League of Cities declined our invitation”!

I wonder how Henderson Mayor Andy Hafen feels about that decision now, given that questions have been raised about whether he should have been allowed to run for re-election. (Hafen had already served more than 12 years on the Henderson City Council when he was re-elected last year, an election that appears to be barred by the decision handed down last week. At the very least, he’ll now be denied an anticipated third term under the ruling.) I only ask because Hafen is listed as a member of the board of the Nevada League of Cities and Municipalities, and his council colleague Debra March is listed as a member of the group’s executive board, as the immediate past president. Might have wanted to get in on that, huh?

Irony No. 4: More “career politicians!” The Supreme Court’s ruling last week noted that “when the question was presented to the voters, the proponents stated that its purpose was to ‘stop career politicians’ by preventing them from holding office for an excessive number of terms.” But the ruling could have the opposite effect!

(Before I explain, I should also point out the irony of that line: There are few, if any, career politicians in Nevada. Most every elected office in the state is considered part-time, and the office holder is expected to have an outside job that serves as his actual career. The lieutenant governor, members of the state Senate and Assembly, city councils and county commissions are all officially part-time jobs. Only the governor, attorney general, secretary of state, treasurer, controller, local sheriffs, district attorneys and — irony alert! — judges and justices of the Supreme Court are full-time jobs.)

Now, if a city were to want to structure its charter so the mayor really was a separate office, it seems there are two ways to do it. One is the city of Sparks approach — the mayor is identified as the head of city government for all purposes, and presides over the City Council but has no vote. (In Reno, the mayor is the head of government for ceremonial purposes, but is specifically listed as part of the City Council, with full voting rights.)

But there’s another way to go: The strong-mayor form of government that’s foreign to Nevada, but practiced in larger cities around the country. In Los Angeles, or New York, for example, the mayor is the chief executive of the city, specifically not part of the City Council. He has no vote on the council and doesn’t preside over it, but can sign or veto laws passed by the council. And he’s the chief executive in a true sense: He appoints deputies and they run their respective local governments, the way city managers do in Nevada. Unlike Nevada mayors, however, strong-mayors are full-time jobs, paid a full-time wage.

In other words, they’re filled by career politicians.

If Nevada cities were to seek to amend their charters toward that form of government — which would require action by the state Legislature — term limits would still apply, but it would be clear that the mayor is a separate office from city councilman, and thus a person could serve 12 years on a council and then run for and serve up to 12 years as a strong mayor. There’s no indication that any city is even contemplating this, but if it were to happen as a result of the term-limits ruling, it would constitute a final and ultimate irony.

One Response to “The ironies of the term-limits debate”

  1. Steve says:

    The real problem is the voters decided but the powers that be have been trying to subvert it ever since.
    If it had been implemented fully, following the intent rather than the letter, I believe it may have been struck down by now.
    For instance, there were a large number of voters upset to lose Bruce Woodbury. It even made news when he was tl’d out.

    Rather than trying to squeeze around it, I think it would have much better to give the people what they asked for right away.

    I should make clear I am not supportive of term limits, that particular decision should have remained in the hands of the voters at the ballot box. I do like Nevada’s part time government, even with what it has become today. It really does represent the people it governs.