Justices question case against public workers in Legislature

Thursday, May 27, 2004 | 11:05 a.m.

CARSON CITY -- Attorney General Brian Sandoval ran into a skeptical Nevada Supreme Court today as he tried to convince the justices that state workers cannot serve in the Legislature.

Justices suggested that Sandoval's petition for a writ of mandamus was defective and said there was no real controversy.

"You're trying to prevent people from being elected," Chief Justice Miriam Shearing told Sandoval.

Sandoval, who is making his first appearance in a Nevada court since becoming attorney general, said he wanted the writ only to prevent them from dual service.

Justice Deborah Agosti told Sandoval that a controversy doesn't exist. "It's not ripe," she said of the time for a decision.

Justice Michael Douglas said there was "no actual controversy." He said those public employees who are elected could resign before being seated in the Legislature.

The court took the arguments under submission and will rule later.

In the oral arguments Kevin Powers, principal deputy legislative counsel, said the Constitution gives the Legislature the right to determine its members' qualifications.

The separations of powers doctrine in the Constitution does not bar a state employee from being a legislator, Powers said.

He argued the powers of the Legislature to make the decision of who is qualified to serve should be protected.

Sandoval has cited the Constitution, which says "No persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others."

He said a key to that separation of powers doctrine is the word "functions" that means an employee doing any duty in the executive branch of government.

Powers argued that employee must be exercising "sovereign power" to be excluded from serving in a second branch of government.

Justice Nancy Becker said the Nevada Constitution was based on the California Constitution. At the time the California Constitution was adopted, there were 33 state employees in the Legislature and there was no bar on public employees from dual service, she said.

Voters in California subsequently amended the Constitution. Powers suggested that that was the remedy here. If the voters don't want state employees and those of the University and Community College System of Nevada to be in the Legislature, then the public should amend the Constitution.

He noted there was an initiative petition being circulated to do just that.

Sandoval said there was a "long line" of judicial decisions in other states that back up his argument that "functions" means "employment."

The court was filled with observers and attorneys who filed "friend of the court" briefs.

Secretary of State Dean Heller, Nevada's chief election officer, asked Sandoval for a legal opinion on whether state employees could serve in the Legislature without resigning. Sandoval said they could not.

Sandoval then filed suit in April on behalf of Heller asking the court to rule on the issue.

Eight "Friend of the Court" briefs were filed, mostly supporting the right of public employees to serve.