Nevada's Supreme Court justices questioned whether the state's top election official has any legal standing to petition for a ruling on dual service by full-time government employees in the state's part-time Legislature.
While no immediate ruling was issued Thursday, six of the state high court's seven justices suggested there were procedural problems with the request from Secretary of State Dean Heller, represented by Attorney General Brian Sandoval.
Justice Nancy Becker said the proper method to resolve the dual-service dispute would be a lawsuit, after some government employee is elected to the Legislature in November.
But at this point, with the election months away, Justice Deborah Agosti said, "nothing has happened yet."
"Something's about to happen," Sandoval said in urging the court to rule on the separation-of-powers issue before the elections.
Chief Justice Miriam Shearing said Heller may be the state's chief election official, but he lacks authority to block a government employee from filing for a legislative seat. Only the Legislature can determine who's qualified to serve after an election, Shearing and other justices added.
Justice Bill Maupin said that the court would venture into "judicial activism" by ruling now that it's unconstitutional for a state worker to serve in the Legislature.
Kevin Powers, principal deputy legislative counsel, told justices that a violation of the separation-of-powers doctrine wouldn't occur if a lower-level government employee also served in the Legislature.
Powers also argued that the ruling sought by Heller would change the way Nevada has operated since statehood - with a citizen legislature that ensures "the interests of every person in the state is represented" when lawmakers convene every other year for their 120-day regular sessions.
"If they don't solve it now, they're going to have to solve it later," Heller said after the court hearing. Heller said he's not trying to stop anyone from running for office and just wants to see decades of confusion over dual service cleared up.
Sandoval issued an opinion in March to limit legislative service by public employees, but that opinion lacks the force of law. In his high court petition, he asked for a finding that dual service by state employees in the Legislature is unconstitutional, and also asked for a finding on whether local government employees can do double duty as lawmakers.
If the petition is granted, at least five lawmakers would have to resign from either the Legislature or their jobs in what, under Sandoval's recent legal opinion, is the executive branch of state government.
Executive-branch employees include those working for the governor or other constitutional officers, various state boards or agencies and Nevada's college and university system.