“Politicians are like diapers. They both need changing regularly and for the same reason.” – Unknown
As I don’t think much of politicians, I’m in favor of term limits. And this is why I invoked the above-mentioned quote about pols and their affinity to soiled nappies when I blogged about lawyers who discuss politics with clients.
But the quote’s also timely since the Nevada Supreme Court has agreed to look at whether term limits as enshrined in Article 15, section 3 of the state constitution apply to district attorneys. More to the point, is it constitutionally permissible for a recently reelected county district attorney to serve a fourth term since he’s already held the Office for 12 years?
Article 15, section 3, (2) of Nevada’s Constitution states: “2. No person may be elected to any state office or local governing body who has served in that office, or at the current expiration of his current term if he is serving will have served, 12 years or more, unless the permissible number of terms or duration of service is otherwise specified in this Constitution.”
O’Connor v. Mallory
In filing his appeal to Nevada’s highest court, John O’Connor is challenging the reelection of wanna-be 4 term Churchill County District Attorney Arthur Mallory.
O’Connor says that D.A.s are “either a legislative or state office under Article 4, section 32 of the Nevada Constitution” and that term limits apply.
Mallory, on the other hand, says that the constitutional provision is inapplicable since he’s a local officer not a state officer. See O’Connor v. Mallory (57312)
But these semantic distinctions are nonsensical. When the Nevada electorate voted for term limits, they intended to hold elected nonjudicial officials accountable by limiting the terms of their political office so they couldn’t be either local or state office lifers.
As for myself, I don’t think it much matters whether you call it a donkey or a burro, it’s still a jackass. And if D.A.s aren’t politicians and political animals in every sense, then you can beat me like a rented mule.
And then there’s what Stephen Raher wrote in “Defending D.A. Term limits” about a Colorado referendum that would have exempted D.A.s from term limits. Raher said the “immense power” wielded by district attorneys places them at the pinnacle of the elected officials who need the greatest degree of oversight and control. “Probably no other person in government can affect an individual’s life as much as a prosecutor – – and no one can harm an innocent person as much as a district attorney bent on bringing a highly publicized prosecution.”
Far as I know, Colorado is the only state that term limits district attorneys. It was part of a 1994 amendment to Article 18, Section 11 of the state constitution that limited all “elected government officials” (2) other than judges, to two four-year terms. Most district attorneys around Colorado have term limits.
Poster-child prosecutorial misconduct.
To underscore why I think such limits are a good thing, take poster-child New Orleans, Louisiana where in the absence of term limits, Harry Connick, Sr. ruled for 30 years. Connick’s tenure as head of the Orleans Parish District Attorney’s office was best distinguished by prosecutorial misconduct charges.
The bad part is that despite instances of misconduct in New Awlins and elsewhere, prosecutors are largely immune from adverse consequences. Time and again, the prosecutorial bacon is saved.
Moreover, there’s little respite or remedy from the canons of professional responsibility. For instance, how often are prosecutors disbarred? (1)
A recent study also found that prosecutors who withhold evidence are almost never disciplined. And the same study further concluded that,“professional responsibility measures as they are currently composed do a poor job of policing prosecutorial misconduct.” See “The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct.” (2)
Further corroborating what happens when there’s no accountability, down in the ‘Big Easy,‘ notwithstanding the U.S. Supreme Court’s wrong-headed decision in Connick v. Thompson, the hits just keep on coming. For the third time in 16 years, the U.S. Supremes will get more bites at the same apple as the “Orleans Parish D.A.’s Office Again Faces U.S. Supreme Court.”
And doubtless since he invested so much of himself in the Thompson Opinion, Justice Clarence Thomas will likely again take up the lead in gently applying his cavalier ministrations on the ham-fisted work of Orleans Parish prosecutors.
So back in Nevada, in light of the above, the practical and realistic solution to protect the community from potential prosecutorial abuses is to term limit the D.A. – – – just as the voters intended.
(1) But hold that thought for the non-refuting rule exception in the case of Maricopa County Attorney Andrew Thomas.
(2) David Keenan, Deborah Jane Cooper, David Lebowitz & Tamar Lerer, The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203 (2011), http://yalelawjournal.org/2011/10/25/keenan.html.
(3) “Section 11. Elected government officials limitation on terms. (1) In order to broaden the opportunities for public service and to assure that elected officials of governments are responsive to the citizens of those governments, no nonjudicial elected official of any county, city and county, city, town, school district, service authority, or any other political subdivision of the State of Colorado, no member of the state board of education, and no elected member of the governing board of a state institution of higher education shall serve more than two consecutive terms in office, except that with respect to terms of office which are two years or shorter in duration, no such elected official shall serve more than three consecutive terms in office. This limitation on the number of terms shall apply to terms of office beginning on or after January 1, 1995. For purposes of this Section 11, terms are considered consecutive unless they are at least four years apart.“