Lawyer challenges appointed judge’s term limit

By Jeff German

Friday, Dec. 12, 2008 | 2 a.m.

A constitutional debate has erupted over whether recently appointed Family Court Judge Robert Teuton must step down on Jan. 5.

In a six-page letter, Robert Lueck, a former Family Court judge who competed with Teuton for the August appointment, has asked Attorney General Catherine Cortez Masto to seek Teuton’s removal, arguing that the state constitution clearly states that the appointment “expires on the first Monday of January following the next general election.”

That election, he said, was Nov. 4.

Lueck wrote that, if his legal analysis is correct, Teuton’s continued presence on the bench after Jan. 5 could have an enormous effect on Family Court. Every order, judgment and divorce decree he signs could be challenged by litigants appearing before him, he said.

“If he’s not lawfully in office, none of his decisions will be worth the paper they’re printed on,” Lueck told the Sun.

Lueck, who said he no longer has any desire for that judicial seat, suggested there may be a need to redo the appointment process.

Lueck’s opinion is not shared by Secretary of State Ross Miller and legal advisers to Gov. Jim Gibbons who appointed Teuton on Aug. 22 to succeed retiring Family Court Judge Gerald Hardcastle.

In Teuton’s case, they have interpreted the next general election clause in the constitution to mean the 2010 election, when Hardcastle’s six-year term happens to end. Teuton, officials said, was appointed after the spring filing deadline for candidates and too late, by law, to get his name or the names of anyone else on last month’s ballot.

In April, when the governor knew he was going to have to fill Hardcastle’s seat, his then-General Counsel, Josh Hicks, and Miller’s elections chief, Matt Griffin, exchanged letters agreeing that they interpreted the constitution to mean “the next election in which a candidate is able to run” for the seat.

Hicks wrote that appeared to be the case in 2000 when a Washoe County district judge resigned and was replaced under similar circumstances.

“If that is the correct interpretation,” Hicks said, Teuton would rightly hold office until the first Monday in January 2011.

The dispute concerns state Sen. Terry Care, D-Las Vegas, a member of the Judiciary Committee, which has been looking at the process of judicial appointments.

“You always want the public to believe that the people who are elected to office got there the way they were supposed to get there,” Care said. “The public just has to feel confident that there aren’t some sort of games being played.”

Care said he doesn’t recall this kind of issue surfacing in 2007, when the Legislature passed a resolution calling for a constitutional amendment to change the appointment process.

But he said the Teuton case likely will lead to a discussion in 2009, when the amendment comes up for a second vote as part of the lengthy process of changing the constitution.

Among other things, the amendment would give judicial appointees in cases such as this more time on the bench before their terms expired.

The new language says an appointee’s term expires on the first Monday of January following the first general election held at least 12 months after the date of the appointment.

If that were in effect today, there would be no controversy over Teuton’s appointment. It would be clear that the first general election in his case would be in 2010.

But before the constitution can be changed, the Legislature has to approve the amendment next year and the voters must approve it in 2010.

In the meantime, Teuton, a former assistant district attorney, said he has done his own legal research on the subject and feels “quite comfortable” that his term legally runs through December 2010.

“On the one hand everybody is free to raise their own arguments,” Teuton said. “I don’t fault (Lueck) for doing that. But on the other hand, as lawyers we understand that there is an element of reasonableness that must be applied to the law. Fundamentally, when you look at his analysis, I think he’s dead wrong.”

Miller said he’s also confident that his office and the governor’s office have handled Teuton’s appointment properly, but he acknowledged the language of the law may need to be cleaned up. He said he supports the constitutional amendment and recognizes the law as it is now could be challenged.

“If anyone wants to bring a court challenge, it’s their right to do so, and we would respect the court’s ultimate decision,” he said.

Edie Cartwright, a spokeswoman for Cortez Masto, said the attorney general has received Lueck’s letter but doesn’t want to comment on a matter she considers confidential because it involves her client, the governor’s office.