Summary
allowing citizens to challenge the governor's failure to comply with the law
Summary of this case from Laborers' Int'l Union of N. Am. v. Truckee Carson Irrigation Dist.Opinion
No. 13359
August 13, 1981
Original proceeding in mandamus was brought seeking to compel governor to declare vacant two judgeships in the Second Judicial District Court created by statute. The Supreme Court held that statute creating two judgeships in the Second Judicial District Court, which was effective immediately, as amended, was constitutional; thus, mandamus lay to compel governor to perform statutory duty of declaring vacant office of district judge.
Writ issued.Guild, Hagen Clark, Reno, for Petitioners. Allison, Brunetti, MacKenzie, Hartman, Soumbeniotis Russell, Carson City, for Respondent.
Richard H. Bryan, Attorney General, and Donald Klasic, Deputy Attorney General, Carson City, as Amicus Curiae.
OPINION
Petitioners request this court to issue a writ of mandamus commanding the governor to declare vacant, NRS 3.080(1), two judgeships in the Second Judicial District Court created by NRS 3.012, as amended by 1981 Nev. Stats. ch. 286. The governor asserts that there are no vacancies to declare, on the ground that the increase in the number of judges in the Second Judicial District Court cannot take effect at this time under Nev. Const. art. 6, § 5.
Mandamus will lie to compel a public officer to perform an act "which the law especially enjoins as a duty resulting from an office," NRS 34.160. NRS 3.080(1) provides that "[t]he governor shall declare vacant the office of district judge." The terms of the statute are mandatory and admit of no discretion. The answer submitted by the governor concedes that the declaration required by NRS 3.080(1) is purely ministerial. Mandamus will therefore lie to compel the governor to perform this duty at the suit of any citizen instituted to enforce compliance with the law, State of Nevada v. Gracey, 11 Nev. 223 (1876), if the act creating the vacancies is constitutional. State v. Dickerson, 33 Nev. 540, 113 P. 105 (1910); see also Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967).
We hold that 1981 Nev. Stats. ch. 286, which makes NRS 3.012 effective immediately, is constitutional. Nev. Const. art. 6, § 5 provides in part:
The Legislature may . . . provide by law for an alteration in the boundaries or divisions of the Districts herein prescribed, and also for increasing or diminishing the number of the Judicial Districts and Judges therein. But no such change shall take effect, except in case of a vacancy, or the expiration of the term of an incumbent of the Office.
We must construe this provision in light of its purpose, Lynip v. Buckner, 22 Nev. 426, 41 P. 762 (1895), which is to ensure the security of the district judges during their terms of office, see State ex rel. Wichman v. Gerbig, 55 Nev. 46, 24 P.2d 313 (1933); see also Brown v. Clark, 34 P.2d 17 (Wyo. 1934). The legislation before us clearly does not contravene this purpose. Rather, its effect will be to relieve the congested state of the Second Judicial District Court. Cf. State of Nevada v. Blasdel, 6 Nev. 40 (1870). Accordingly we decline to declare NRS 3.012, as amended by 1981 Nev. Stats. ch. 286, unconstitutional.
We therefore direct the clerk of this court to issue a writ of mandamus, forthwith, commanding the respondent governor of Nevada to declare vacant two district court judgeships in the Second Judicial District Court. NRS 3.080(1).
It is so ORDERED.