ACLU comes to aid of lawmakers

Friday, May 7, 2004 | 9:37 a.m.

CARSON CITY -- Secretary of State Dean Heller is wrong in trying to ban state and university employees from serving in the Legislature, the American Civil Liberties Union of Nevada said today.

In an amicus curiae, or "friend of the court" brief, the group said "public employees have been serving well and honorably in the Legislature since at least the early part of the Twentieth Century. For this court to rule that suddenly such service is unlawful would not be to interpret the Constitution but to effectively amend it by judicial fiat."

The ACLU joined with public employees groups and the Legislature in asking the Supreme Court to dismiss the suit by Heller that seeks to bar public employees from serving as lawmakers.

The Heller suit was filed by Attorney General Brian Sandoval who issued a legal opinion that these employees were prohibited by the separation of powers doctrine from holding a state or university job and also being in the Legislature.

A spokesman for Sandoval said he will not ask the court for a chance to reply to the briefs of the Legislature, the public employee organizations or the ACLU, a decision that will expedite the case. The Supreme Court has not indicated whether it will hear oral arguments.

Sandoval sought a ruling before the close of political filing deadline on May 14.

Allen Lichtenstein, a Las Vegas attorney for the ACLU, said all legislators, regardless of where they are employed, will encounter some conflict between their job and legislative duties.

"This does not disqualify any individual from serving," Lichtenstein wrote.

Lichtenstein's brief said the Constitution prohibits those serving in the Legislature from taking a position as a public official that the Legislature either created or for which it increased the salary.

But a public officer is different from a public employee, the ACLU said. He said a prior opinion by the Nevada Supreme Court described a public officer as one who is elected or appointed to an office established by the Constitution or by law, the brief said.