Secretary of State v. STATE LEGISLATURE

• Decision Date: 14 July 2004
• Docket Number: No. 43079.,43079.
• Citation: 93 P.3d 746,120 Nev. 456
• Parties: Hon. Dean HELLER, Secretary of State of the State of Nevada, Petitioner, v. The LEGISLATURE OF the STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

93 P.3d 746

120 Nev. 456

Hon. Dean HELLER, Secretary of State of the State of Nevada, Petitioner, v. The LEGISLATURE OF the STATE OF NEVADA, Respondent.

No. 43079.

Supreme Court of Nevada.

July 14, 2004.

Brian Sandoval, Attorney General, Jeff E. Parker, Solicitor General, and Ann P. Wilkinson, Deputy Attorney General, Carson City, for Petitioner.

Brenda J. Erdoes, Legislative Counsel, and Kevin C. Powers, Principal Deputy Legislative Counsel, Carson City, for Respondent.

Beckley Singleton, Chtd., and Daniel F. Polsenberg and Beau Sterling, Las Vegas; Bradley Drendel & Jeanney and William O. Bradley Sr., Reno; William Patterson Cashill, Reno; Robert C. Maddox & Associates and Robert C. Maddox, Las Vegas, for Amici Curiae Las Vegas Police Protective Association, Metro Inc.; Nevada Association of School Administrators; Nevada Faculty Alliance; Nevada State AFL-CIO; Professional Firefighters of Nevada; Retired Public Employees of Nevada; and State of Nevada Employees Association (SNEA/AFSME Local 4041). Dyer, Lawrence, Penrose, Flaherty & Donaldson and Michael W. Dyer, James W. Penrose, and Cory A. Watkins, Carson City, for Amici Curiae Nevada State Education Association, Clark County Education Association, Education Support Employees Association of Clark County, and Washoe Education Association. Allen Lichtenstein, Las Vegas, for Amicus Curiae American Civil Liberties Union of Nevada.

James T. Richardson, Reno; Watson Rounds and Matthew D. Francis, Reno, for Amicus Curiae The Nevada Faculty Alliance.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

In this original mandamus proceeding, the Secretary of State challenges state government employees' service in the Legislature as violating the Nevada Constitution's separation of powers. The Secretary also questions whether local government employees may serve as legislators without violating 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 Nevada Constitution expressly reserves to the Senate and Assembly the authority to judge their members' qualifications. Nearly every state court to have confronted the issue of dual service in the legislature has found the issue unreachable because a constitutional reservation similar to Nevada's created an insurmountable separation-of-powers barrier. Thus, by asking us to declare that dual service violates separation of powers, the Secretary urges our own violation of separation of powers. We necessarily decline this invitation.

Additionally, significant procedural defects plague the Secretary's petition for mandamus relief. Specifically, the Secretary lacks standing to seek any type of relief forcing the Legislature to take action on its members' qualifications, this matter is not ripe for review, and the Secretary has sued the wrong party. Further, quo warranto, rather than mandamus, is the appropriate vehicle by which to challenge a legislator's title to public office.

Accordingly, the Secretary's petition must be denied.

FACTS

On April 2, 2004, the Secretary of State filed in this court a petition for a writ of mandamus, asking us to (1) find that service in the Legislature by "certain," unidentified executive branch employees violates separation of powers; (2) direct the Legislature as a whole to enforce separation of powers; (3) determine whether separation of powers is violated by "certain," unidentified local government employees' service in the Legislature; (4) permit the Secretary leave to amend the petition "to seek additional remedies in the event the Legislature fails to act as required by this Court"; and (5) provide "other and further relief as this Court" deems proper. The Secretary relies on a March 1, 2004 Attorney General opinion concluding that separation of powers "bars any employee from serving in the executive branch of government and simultaneously serving as a member of the Nevada State Legislature," but tolerates a local government employee's simultaneous service as a legislator.

On May 4, 2004, the Legislature filed an answer, listing numerous bars to mandamus relief, and asserting that the Secretary's "only judicial recourse is to bring an appropriate judicial action against the individual legislator to determine whether the legislator may keep his public employment." The Legislature concludes that separation of powers is not violated by a legislator's service in state or local government employment.

This court also permitted the filing of amicus briefs by The Nevada Faculty Alliance, The American Civil Liberties Union of Nevada, various educational associations, and a consortium of amici headed by the Las Vegas Police Protective Association, Metro Inc. These amici all join against the Secretary, and mostly reiterate points made by the Legislature. On May 20, 2004, the Secretary filed a reply to the Legislature's answer, partially altering the relief sought. The Secretary states that he seeks an interpretation of Article 3, Section 1(1) (separation of powers), as it pertains to executive branch employees serving in the Legislature. The Secretary then asks that we "order[ ] the Legislature to rely on that interpretation in the performance of its discretionary duty of judging the qualifications of its members under Article 4, Section 6." While the Secretary cites the upcoming primary and general elections as creating an urgent and strong need for our immediate intervention, the Secretary requests that relief "apply on a prospective basis only," taking effect at the start of the Legislature's 73d regular session in February 2005. Essentially, the Secretary asks us to declare state executive branch employees unqualified to serve as legislators, and then direct the Legislature to comply with our declaration and either remove or exclude those employees from the Legislature beginning in 2005.¹

DISCUSSION

Part I of this opinion addresses the procedural bars to mandamus relief, noting that the Secretary lacks standing to seek mandamus relief and has sued the wrong party at the wrong time, and that quo warranto is the appropriate proceeding in which to challenge title to a public office. Part II identifies the insurmountable separation-of-powers bar to this court judging state executive branch employees' service in the Legislature. And finally, Part III discusses the proper proceedings and parties to raise the dual service issue: district court actions, filed by the attorney general or legally interested persons seeking, respectively, quo warranto or declaratory relief to exclude a legislator from executive branch employment.

I.

The Secretary lacks standing to seek the exclusion or ouster of executive branch employees from the Legislature

"Standing is the legal right to set judicial machinery in motion."² To establish standing in a mandamus proceeding, the petitioner must demonstrate a "beneficial interest" in obtaining writ relief.³ Although this court has not defined "beneficial interest," the California courts have: "To demonstrate a beneficial interest sufficient to pursue a mandamus action, a party must show a direct and substantial interest that falls within the zone of interests to be protected by the legal duty asserted."⁴ "Stated differently, the writ must be denied if the petitioner will gain no direct benefit from its issuance and suffer no direct detriment if it is denied."⁵ Although neither the Legislature nor the Secretary has addressed standing in the documents before us, we necessarily reach the issue, as it affects our original jurisdiction.⁶

The Secretary has no discernible beneficial interest in having state executive branch employees ousted or excluded from the Legislature. The Secretary's only explicit duty under the Nevada Constitution is to "keep a true record of the Official Acts of the Legislative and Executive Departments of the Government, and ... when required, lay the same and all matters relative thereto, before either branch of the Legislature."⁷ And Nevada's Legislature, by designating the Secretary as the chief officer of elections, and by giving his office the authority to administer the state's election process, appears to have intended that the Secretary only have standing to seek enforcement of the state's election laws.

A public officer's capacity to sue is incident to the duties of the office.⁸ In his capacity as the state's chief elections officer, the Secretary must obtain and maintain consistency in the application, operation and interpretation of election laws.⁹ With respect to candidates for state office, the Secretary "prescribe[s] the forms for a declaration of candidacy, certificate of candidacy, [and] acceptance of candidacy."¹⁰ After a person has filed a candidacy declaration or acceptance, a written challenge that the prospective candidate does not meet constitutional qualifications may be filed with the Secretary, who then begins a process preliminary to judicial review.¹¹ Following a primary election, the Secretary must certify all nominations for state offices to the various county clerks.¹² Ultimately, once ballots are prepared for a general election, the Secretary oversees the voting process for the election.¹³

In the present matter, the Secretary does not contend that he is unable to discharge his official duties relating to state election laws without writ relief. Rather, the Secretary suggests that he seeks to enforce and uphold the Nevada Constitution on behalf of the state's citizens. Notwithstanding that broad suggestion, the petition ultimately seeks to oust or exclude state executive branch employees from the Legislature. This remedy is not within the Secretary's scope of authority, which is to administer the state's election process. And even after an election, when presented with a contest over a seat in the Senate or Assembly, the Secretary is powerless to do...