Attorneys for Legislature oppose Sandoval lawsuit

Wednesday, May 5, 2004 | 10:24 a.m.

CARSON CITY -- A suit filed in the Nevada Supreme Court by Attorney General Brian Sandoval to bar state and university employees from the Legislature is in the wrong court and is legally defective, the Legislature's lawyers say.

The legislative attorneys also argue the Legislature is the judge of whether its members are eligible, not the court.

Legislative Counsel Brenda Erdoes and Principal Deputy Legislative Counsel Kevin Powers filed their answer Tuesday to the petition for a writ of habeas corpus sought by Sandoval. "If this court were to issue such a writ, the judiciary would be usurping the exclusive power of each House to judge the qualifications of its members," the lawyers wrote.

Powers said the Supreme Court can ask for Sandoval to file a reply brief and it can decide whether it wants to hear oral arguments in the case. Sandoval has asked a speedy court decision, noting that filings close May 14.

Sandoval filed the suit in behalf of Secretary of State Dean Heller, the state's chief election officer, to clear up the issue whether state and university employees can serve in the Legislature or if it is a violation of the separation of powers doctrine. Sandoval has also asked for an advisory opinion on service by local government workers.

The legislative lawyers said Sandoval should have brought the action in District Court, not the Supreme Court and that he failed to name the lawmakers who are affected as defendants.

They said if the Supreme Court grants Sandoval's request, it would be usurping the independence of each lawmaker to vote his conscience on whether to seat or unseat another member.

The affected lawmakers are Assemblyman Ron Knecht, R-Carson City, who works for the state Public Service Commission; Senate Minority Leader Dina Titus, D-Las Vegas, who is a professor at the University of Nevada, Las Vegas; Assembly members Chris Giunchigliani, D-Las Vegas, and Mark Manendo, D-Las Vegas, who are employed by the Community College of Southern Nevada, and Jason Geddes, R-Reno, who works for the University of Nevada, Reno.

Erdoes and Powers said they disagree with Sandoval on the separation of powers doctrine. They said the authors of the Nevada Constitution wrote that a constitutional officer shall not exercise any functions pertaining to another branch of state government.

The distinction between an officer and employee is "well established in the common law," they wrote.

Erdoes and Powers said that if the Supreme Court finds the separation of powers doctrine bars state and university employees from serving, it should also declare that prior legislative acts of these lawmakers are still valid.