Court to decide separate powers debate

Friday, March 26, 2004 | 11:21 a.m.

CARSON CITY -- The question about whether government employees can serve in the Legislature is headed to the Nevada Supreme Court.

Attorney General Brian Sandoval says he will file a lawsuit with the court "by the end of next week" to seek a ruling on the matter.

And the Independent American Party of Nevada says it will ask the state's highest court to grant a writ of mandamus forcing Assemblymen Mark Manendo, Jason Geddes and Ron Knecht as well as state Sen. Dina Titus and Assemblywoman Chris Giunchigliani to immediately resign from their legislative positions or quit their other state jobs. On March 1, Sandoval issued an opinion that state employees should not be serving in the Legislature because the dual roles violate a core constitutional principle -- the separation of the legislative and executive branches of government. His opinion said the Constitution bars any employee from serving in the executive branch -- which includes the college and university system -- and simultaneously serving in the Legislature.

But Sandoval and others have noted that his legal opinion is just that -- an opinion, so the court needs to make the final call on the issue.

Secretary Dean Heller asked Sandoval to get the state's highest court to clarify whether the separation of powers doctrine permits public employees to become members of the Legislature.

"The research has been done and a draft document prepared," Sandoval said Thursday. Heller, as the state's chief election officer, said it "is imperative that the state of the law be clarified prior to May 3 when candidate filing begins for the 2004 election."

Sandoval said the law allows a suit to be filed in the Supreme Court if there is an agreement with the Legislature that a controversy exists, so Sandoval and Heller want to go that route to expedite the ruling.

The attorney general said he was to meet today with Brenda Erdoes, chief attorney for the Legislature, to go through the legal procedure.

Sandoval's opinion did not have implications for members of the Legislature who have local government jobs, however, and it was controversy with some of those members that had spurred the Sandoval opinion.

Sandoval said there is no constitutional prohibition against local government employees being elected to and serving in the Legislature, but he and Heller want the Nevada Supreme Court to rule on that issue as well.

Titus said she won't be resigning.

"This is not a 'resign' state," she said.

Even if the court decides that state employees can't be lawmakers, the ones who were elected should be able to serve out their terms.

Titus, a professor at UNLV, said: "I wouldn't think the court would make this retroactive."

She also questioned whether the court could stop anybody from filing for office. But if they are elected, then that would be the time they would have to choose, if the Supreme Court rules that way, she said.

Knecht said if the purpose of the suit is to clarify the law in a speedy fashion, "That's good." He said that would be useful to potential candidates to know if they would have to resign if they win election.

But if this is an attempt by the executive branch to intrude into legislative business, he doesn't like it. "If this is something else, the Legislature will be galvanized to stand up." He said the executive branch already used the Supreme Court in the case to force the Legislature to pass a tax plan last summer.

Knecht also said there is a law that the Legislature is the judge of its own membership and he wondered why the executive branch is getting involved.

Sen. Randolph Townsend, R-Reno, applauded the decision to seek a ruling from the state's highest court.

"I think the secretary of state did the right thing," said Townsend.

Giunchigliani, an employee of the Community College of Southern Nevada, questioned whether the attorney general would have to file suit first in district court before going to the Supreme Court. But she said she's not an attorney and doesn't know the answer.

She said she would quit her job and continue in the Legislature if the court rules public employees cannot serve in the Legislature.

Local government employees in the Legislature include John Oceguera, D-Las Vegas, a fireman in Clark County; Assembly Speaker Richard Perkins, D-Henderson, deputy chief of police in Henderson; Assemblywoman Sheila Leslie, D-Reno, who works in the district court system in Reno; and Assemblyman Bernie Anderson, D-Sparks, a schoolteacher.