Thursday, October 14, 2010

No Justice, No Peace

The Nevada Supreme Court has held that a candidate for justice of the peace is ineligible in light of the requirement of five years of practice:

            In this appeal, we are asked to define the eligibility requirements set forth in NRS 4.010(2)(a) for justice of the peace.  Based on the statute’s plain and unambiguous language, we conclude that, before being elected or appointed to a justice of the peace position, an attorney must be licensed to practice law for a minimum of five calendar years, which are typically 365-day years, from the date of his or her admission.  After expedited briefing and argument, we summarily affirmed the district court’s order granting the petition to remove the candidate for justice of the peace from the ballot, as she did not meet the minimum five-year requirement.  This opinion sets forth the full reasoning that underlies our disposition.

The candidate was ineligible because:

To reach the required five years using the approach [the candidate] advocates, 2006 must be counted as a full year of licensure and admission, even though [she] was only admitted in October of that year, and therefore was licensed for only three months in 2006.  Under this scenario, 2006 actually is added to 2007, 2008, and 2009 to reach four years. Finally, this year—2010—would likewise have to be treated as a full year of licensure and admission, even though the election is scheduled for November of this year.

Two justices dissented and would address constitutional and statutory claims raised in the case:

...the majority glosses over the immense disparity of required qualifications created by NRS 4.010(2)(a) for urban and rural justices of the peace.  In most urban areas, a candidate for justice of the peace must be an attorney, licensed and admitted to practice law for not less than five years, while elsewhere, a candidate need only have a high school diploma or “its equivalent.”  NRS 4.010(2).  However, NRS 4.010(2)(a) and (b) do not distinguish between all urban and rural communities.  Although NRS 4.010(2)(a) requires justices of the peace to be attorneys with five years of experience in Clark County for townships with populations above 100,000, NRS 4.010(2)(b) only requires justices of the peace to be attorneys with five years of experience in Washoe County for townships with populations above 250,000.  Therefore, a justice of the peace in the urban area of Sparks Township does not have to be an attorney.  What is the rational basis for this township population disparity between Clark and Washoe counties?  In addition, it has long been common practice in Clark County for justices of the peace from small townships, who are not attorneys, to sit and hear court calendars in Nevada’s largest township, Las Vegas Justice Court.  When comparing and considering these different requirements, [The candidate's] equal protection arguments become far more compelling and demonstrate that a violation of her equal protection rights has occurred.

            Further, under the scheme created by NRS 4.010(2)(a), in this state’s capital, Carson City, a person with business before the justice court could have his or her case decided by a justice of the peace with only a high school diploma or “its equivalent.”  In stark contrast, a litigant with the same business in Las Vegas or Reno justice courts could not have his or her case heard by an individual who graduated from one of this country’s most prestigious colleges, attended one of the nation’s most highly regarded law schools, and worked as an associate at a major law firm or as a staff attorney for this court for four years, as that person would not have the required five years of experience.  This situation is shameful and cannot possibly further any legitimate interests of this state.

            I would further note that we recently concluded that the censure of an elected public officer by the Nevada Commission on Ethics for alleged voting infractions violated the First Amendment.  See Carrigan v. Commission on Ethics, 126 Nev. ___, 236 P.3d 616 (2010).  In Carrigan, we cited Citizens United v. Federal Election Commission, 558 U.S. ___, 130 S. Ct. 876 (2010), for the proposition that NRS 281A.420(2)(c) must be declared unconstitutional because the statute was not narrowly tailored to meet a compelling government interest.  We reviewed this statute under a strict scrutiny analysis.

            As we acknowledged in Nevada Judges Ass’n v. Lau, “‘[t]he right to hold public office is one of the valuable rights of citizenship.  The exercise of this right should not be declared prohibited or curtailed except by plain provisions of the law.  Ambiguities are to be resolved in favor of eligibility to office.’”  112 Nev. 51, 55, 910 P.2d 898, 901 (1996) (quoting Gilbert v. Breithaupt, 60 Nev. 162, 165, 104 P.2d 183, 184 (1940)).  Therefore, NRS 4.010(2) must be reviewed under a strict scrutiny analysis.  Thus, I would strike down NRS 4.010(2)(a) as violating [the candidate's] equal protection rights by creating an absurd distinction that cannot withstand even the lowest level of judicial scrutiny.

 (Mike Frisch)

Judicial Ethics and the Courts | Permalink

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