The Nevada Supreme Court unanimously rejected the idea of kicking public employees out of the Legislature, saying Wednesday that would violate the same doctrine the secretary of state and attorney general cited in demanding their ouster.
The secretary of state filed suit April 2 asking the high court to remove executive branch employees from the Legislature on grounds their dual service violates the constitutional separation of powers.
"Ironically, the secretary's attempt to have state executive branch employees ousted or excluded from the Legislature is barred by the same doctrine he relies on - separation of powers," the opinion states.
It says the Nevada Constitution clearly reserves to the Senate and Assembly the authority to judge their members' qualifications.
"Thus, by asking us to declare that dual service violates separation of powers, the secretary urges our own violation of separation of powers."
Wednesday's opinion says that opinion mirrors cases in other states where the issue has been raised.
The separation of powers argument is so strong, the opinion states, the Supreme Court has no authority over who sits in the Assembly or Senate.
Only the other members of each body have that power.
But the Supreme Court opinion points out the courts can review the issue if the argument is stated in reverse.
"Although a court may not review a state employee's qualifications to sit as a legislator, a court may review a legislator's employment in the executive branch," it says.
The 26-page opinion suggests a way in which that question could be brought before a district court. "Quo warranto" is a common-law legal action under which a court can be asked to formally determine a specific person's right to hold an office and remove that individual.
Unlike the writ of mandamus sought in the secretary's lawsuit, quo warranto deals with a specific person in a specific office and brings all the parties in for a hearing on whether that person is qualified to hold the office - in this case, a position in the executive branch of state government.
It says the attorney general would have the standing to bring that action, and that declaratory relief could be requested by someone with a legal interest, such as a campaign opponent.
The issue was originally raised by a group of activists who argue that all public employees including public school teachers should be barred from simultaneously holding a legislative seat. Their goal is to remove a number of incumbents, primarily Democrats.
The attorney general's opinion - which formed the basis of the secretary's lawsuit - said the separation of powers argument should bar state executive branch employees from legislative service, but didn't apply to local government and school district employees.
Contact Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.
