Editorial: Petition was rightly denied

Friday, July 16, 2004 | 8:47 a.m.

In March Nevada Attorney General Brian Sandoval issued a written opinion that employees of the state's executive branch who simultaneously serve in the Legislature are violating the Nevada Constitution's "separation of powers" provision. Secretary of State Dean Heller, who supervises the state's elections, followed with a petition to the Nevada Supreme Court. The petition asked the court to uphold the attorney general's opinion and order the Legislature to bar any executive branch employees beginning with its 2005 session.

All of this got started when the 2003 Legislature approved a modest amount of new and increased taxes, which were vital to cope with the state's nation-leading growth. But a groundswell of anti-tax legislators and citizens, blind to the legitimate need, gained a certain following by blaming the increases partly on the fact that too many government employees, allegedly with vested interests, were serving in the Legislature.

Separation of powers' provisions are necessarily in place to prevent any one branch of government from accumulating power rightfully belonging to another branch. The provision protects freedom by subjecting government power to checks and balances. Sandoval and Heller concluded that the executive branch could gain too much power if its employees could also be legislators.

The high court was thorough in citing the many and varied reasons why the blanket order sought by Heller was not within its power to grant. For example, it concluded that it would itself be violating the separation provision if it ordered the Legislature to oust members. The separation provision is worded to allow exceptions "in the cases expressly directed or permitted in this Constitution." And the Constitution is clear that the state Senate and Assembly have the express authority to judge for themselves the qualifications of their elected members.

Lower courts may yet see individual lawsuits against individual legislators, based on their state employment. For now, however, the high court has removed legal questions for public employees seeking election to the 2005 Legislature. In our view, this is a step forward. Public employees are also citizens. They should not be barred from our citizens' Legislature.