Carson District Judge Mike Griffin denied Tuesday a Fallon man's motion seeking to force his state Senate opponent off the ballot.
John O'Connor and his mother, Marilyn, have filed several challenges over the years arguing the state's constitutional term-limits rules should be applied retroactively - to service by public officials before the rule was put in the constitution - not just to their terms of office after 1996.
Using that argument, O'Connor says Sen. Mike McGinness, R-Fallon, has already been in the Nevada Senate 12 years and should be barred from running again.
If granted, it would leave O'Connor, the underdog in the race, as the sole Republican contender for the office.
But in a 20-minute hearing Tuesday, Griffin rejected the argument. He agreed with the Legislative Counsel Bureau and Deputy Attorney General Vicki Oldenburg that existing case law and all indications from the Legislature and the creators of the term-limits amendment indicate it was intended to be applied "prospectively, not retroactively."
"A constitutional issue has to be clearly established as being retroactive in its application and this does not do that," Griffin said.
Griffin said he agreed with interpretations by two previous district court judges, including Michael Fondi of Carson City, who ruled the term-limits provision was not retroactive.
O'Connor said later he would not appeal the issue to the Nevada Supreme Court, which has already rejected a similar argument by O'Connor this year.
"It would be a waste of time," he said. "We're going after this in federal court."
He did not say what grounds he would raise to get the case into federal court.
The term limits rule was approved by Nevada voters in the 1994 and 1996 elections. It limits elected officials to 12 years in most state and local offices. Under O'Connor's interpretation, McGinness would have to leave the Senate because he has served there since 1992. Under the court's interpretation and that used by the Legislative Counsel Bureau, the only terms McGinness has served which count against that 12-year limit are those he was elected to after 1996. So he has served only four years of his 12 under the limit and can run not only this year but in 2008.
Several other longtime member of the Senate can go even further, running for office in 2010 if they choose because the first election they faced that counts under the term limits rule is the 1998 election.
Ironically, that includes the longest-serving member in state Senate history, Bill Raggio, R-Reno, who has been in the Senate since 1972.
Because Assembly members run every two years, all longtime members of the lower house will use up their eligibility under the law by 2010. The only current members who could serve beyond that are those who weren't in the Legislature in 1998.
Contact Geoff Dornan at nevadaappeal@sbcglobal.net
