Nevada Attorney General Brian Sandoval filed arguments Thursday saying the Nevada Supreme Court has the power and responsibility to decide whether public employees can simultaneously serve as members of the Legislature.
The court is trying to decide whether some or all government workers are barred from holding both a local or state agency job and a seat in the Legislature. The attorney general petitioned the court to decide and, if government workers can't legally serve, to remove them from the Legislature and bar them from running.
Legislative Counsel Brenda Erdoes argued the Legislature has exclusive power to decide who serves there and the secretary of state can't interfere.
The Legislative Counsel Bureau argues the state constitution bars only elected officials and department heads who exercise "sovereign functions" of the executive branch from being legislators, not everyday government workers. And it says separation of powers can't be used as an argument to block local government employees from serving because they aren't part of state government.
Sandoval's response this week argues the Supreme Court is "the ultimate arbiter of the Nevada Constitution and is the only body that is constitutionally empowered to answer this long-standing legal controversy once and for all."
He argued there are no issues of fact to be settled which would send the case down to district court - that the only issues are legal questions properly in the jurisdiction of the court.
Sandoval's brief says the state isn't asking the court to interfere with Legislative powers, only to make the Legislature follow Nevada's Constitution.
The petition says legislative immunity from interference "was not intended to protect unconstitutional conduct unrelated to the Legislature's lawmaking activities."
"Implicit in the Legislature's authority to judge the qualifications of its members is the inherent understanding that it cannot ignore the constitutional qualifications and minimum eligibility requirements of its members."
The attorney general's brief argues that, contrary to what the counsel bureau said, the constitution is clear that members of the executive branch can't also exercise powers as lawmakers. It says the constitution makes no distinction between heads of agencies and workers.
But, at the same time, the attorney general agreed with counsel bureau lawyers when it comes to the question of whether ruling dual service illegal would invalidate past legislative actions involving public employee legislators.
"The prior legislative acts of dually serving legislators should not be void or subject to collateral attack," the brief says.
And it says the petition isn't an attempt to prevent public workers from running for office.
Any state or local government employee who is a qualified elector can run as a candidate for legislative office," he says. "Any Nevada voter can then vote for such a candidate in their district. The issue before this court is whether, if elected, that candidate can serve in the legislature and continue to hold public office without violating the separation of powers doctrine."
The court has scheduled oral arguments on the issue for May 27.
Contact Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.
