Williams v. Clark County District Attorney

Rose, J.,

concurring in part and dissenting in part:

I agree with the majority’s conclusion that the Koval Lane apartment in Las Vegas was not Kevin Williams’ legal domicile (your home is where your cat lives, and for Kevin that was not at Koval Lane), and also its analysis of NRS 281.050(4). However, I do not believe NRCP 6(a) — a court rule — should be used in this instance to enlarge the time for filing from 5 to 7 days when the legislature clearly expressed an intent to provide an election challenger only 5 days to act. I conclude that Ferrence’s challenge *487was untimely, and accordingly I would reverse the district court’s decision.

The 2001 legislation expressly provided that a person has 5 days after the last date that a candidate may withdraw his or her candidacy to file a legal challenge under NRS 293.182. Sections (1) and (4) of that statute provide as follows:

1. After a person files a declaration of candidacy or an acceptance of candidacy to be a candidate for an office, and not later than 5 days after the last day the person may withdraw his candidacy pursuant to NRS 293.202, an elector may file with the filing officer for the office a written challenge of the person on the grounds that the person fails to meet any qualification required for the office pursuant to the constitution or a statute of this state, including, without limitation, a requirement concerning age or residency.
4. If the attorney general or district attorney determines that probable cause exists to support the challenge, the attorney general or district attorney shall, not later than 5 working days after receiving the challenge, petition a court of competent jurisdiction to order the person to appear before the court.1

The statute, on its face, demonstrates that the legislature knew the difference between 5 days and 5 working days, and chose to give only “5 days” within which to file a challenge. When a clear intent to set a specific time limit is shown by a statute, we should accept it and enforce the legislative directive. It is a long-standing legal rule that clear and unambiguous legislation should be enforced as written,2 and that no word or clause should be made superfluous by our interpretation.3 The majority baldly admits that its reading does make the word “working” superfluous when NRCP 6(a) is applied, but the majority goes ahead and applies it anyway. This sort of judicial legislation should be avoided when possible, and it is possible in this case.

I would limit our holding in Rogers v. State4 so that NRCP 6(a) is applied only to those time limits where no clear intent is shown by the legislature to exclude additional days. The legislature used both “5 days” and “5 working days” in the same statute, and we have often said that the legislature is presumed to know what it is *488doing and purposefully uses the specific language.5 As if the statute were not enough, the legislative history of this law also demonstrates that the legislators were well aware of the difference between 5 days and 5 working days, debated the point, and chose the more stringent 5-day limit to apply to section (l).6

And in the future, how will the legislature provide for a 5-day limit when that is exactly what the legislators want? Must the statute say “5 days, and we really mean just 5 days,” or must the legislature make the limit 3 days, knowing that the courts will automatically add 2 days to any time limit?

This does not leave Myrna Williams or Ferrence without any remedy. NRS 281.050(3) specifically contemplates that an action for declaratory judgment may be filed in the district court to challenge the claimed residency of a candidate. While this will necessitate the filing of another action, it is an alternative legal path available to those who have not filed a challenge under NRS 293.182(1) within the strict 5-day time limit.

Emphases added.

Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993).

Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970).

85 Nev. 361, 455 P.2d 172 (1969).

City of Boulder v. General Sales Drivers, 101 Nev. 117, 118-19, 694 P.2d 498, 500 (1985).

Hearing on A.B. 487 Before the Senate Comm, on Government Affairs, 71st Leg. (Nev., May 2, 2001).