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Nevada Supreme Court takes up term limits for DAs
by Sandra Chereb - Associated Press
Nov 03, 2011 | 858 views | 0 0 comments | 4 4 recommendations | email to a friend | print
CARSON CITY (AP) — Fifteen years after Nevada voters approved term limits, the state Supreme Court on Wednesday considered whether the constitutional amendment also applies to district attorneys and if it was the intent of voters to limit the time elected county prosecutors can hold office when they approved the ballot initiative in 1994 and 1996.

The case involves an appeal filed by John O’Connor, of Fallon, who challenged the re-election in November of Churchill County District Attorney Arthur Mallory.

O’Connor claims the condensed version of Question 9, as it appeared on the ballot, asked voters, “Shall the Nevada Constitution be amended to establish term limits for state and local public officers?”

Opponents counter that the full body of the amendment makes clear that voters intended to impose term limits on people elected to any state office or “local governing body,” such as county commission or city council.

Justices will rule later whether the conflict was confusing to voters and, if so, how the court should deal with that ambiguity.

Mallory was first elected in 1998. O’Connor contends term limits prevent him from holding office for more than 12 years.

He argues district attorneys are “state officers” subject to term limits. O’Connor also points to the wording of the question itself to support his argument.

“I know what I voted for when I voted for term limits,” O’Connor told The Associated Press. O’Connor is not a lawyer and filed his legal challenge to Mallory’s re-election himself.

In his briefs, he argued that district attorneys are “nonjudicial state officers” who, while elected locally, enjoy immunity from certain lawsuits and carry out the legal functions for the state at the county level.

Las Vegas attorney Bradley Schrager, who was involved in earlier term limit cases, presented oral arguments to the full court on O’Connor’s behalf.

Mallory and others counter the constitution distinguishes between state and county officers, and that the detailed explanation of the initiative made it clear it did not apply to local officers.

Schrager said district attorneys are “arms of the state,” and enjoy immunity from liability under the 11th Amendment.

Schrager also said that the high court understood the implications for all non-judicial officers when it split the original ballot measure into two separate questions to allow voters to decide separately if the terms of judges also should be restricted. Voters rejected limiting judicial terms.

Three current Nevada district attorneys — Mallory, Ted Beutel in Eureka County and Richard Gammick in Washoe County — have been in office longer than 12 years. Six district attorneys attended Wednesday’s court hearing.

The Nevada District Attorneys Association and Nevada Association of Counties filed friend-of-the-court briefs disputing O’Connor’s arguments.

In court documents, Mallory and the associations cited an earlier Supreme Court decision, which defined a state office as “any other office for which electors of the entire state or subdivision of the state greater than a county are entitled to vote.”

Robert Eisenberg, a lawyer who argued on Mallory as the associations’ behalf, said state officers are replaced by the governor when a vacancy occurs. District attorney’s he said, are chosen by the county commission.

Eisenberg cited an earlier opinion from the attorney general’s office that defined a local governing body as a group, whose function is to governor.

District attorneys, in contrast, don’t create policy or laws, but rather enforce it, he said.
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