Vol. 1,
No. 12
April 15,
2004
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CRIMINAL DEFENSE |
COPYWRITING
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Touch Screen Voting Machines Shipped
4.5 Months To Election Day & Counting Only Clark County Has Used These Machines
Training To Be Intense Statewide
by Johnny Gunn
Sequoia Voting Machines Company of Oakland, CA has begun shipping the touch screen voting machines that will be used throughout the state in the upcoming elections. County clerks and registrars of voters should be receiving the machines, some as early as the 16th, and most by Monday, April 19.
Although the Voter Verified Printer (VVP) device hasn't been certified as yet, according to Renee Parker, Chief Deputy Secretary of State, that part of the voting machine simply plugs in, and won't hold up training schedules in the various counties. VVP certification is expected well before the August 21 beginning of early voting in Nevada.
As the counties receive their machines, the process follows this schedule. First the clerks or registrars do acceptance testing of the machines. When that is completed and machines are accepted, the training of staff takes place, and finally, general training for voters.
Secretary of State Dean Heller decreed earlier this year that Sequoia Touch Screen Voting Machines with a Voter Verified Printer Device (VVP) be used in all 17 Nevada Counties this year. The federally mandated Helping Americans Vote Act (HAVA) decreed that touch screen voting machines be in place by the 2004 election cycle. That was amended to 2006. Heller has continued to use the 2004 election as when touch screen voting is to take place, and contracted with Sequoia Voting Machines to purchase machines for all 17 Nevada Counties.
The program in Clark County is considerably different from the rest of the state. Touch screen voting machines along with Direct Recording Electronic Computers have been in use for eight years or more. "There are 2,186 older machines," Clark County Registrar of Voters Larry Lomax says, "and 740 touchscreens on order." Lomax says the printer device will plug into the printer portal with no problem. "We've used these in Clark County since 1996 and will have at least one at each polling place."
The poll workers in Clark County have been fully trained for years, unlike poll workers in the rest of the state. Training in the various counties should be getting underway in the next few weeks according to Secretary of State Dean Heller.
Washoe County Registrar of Voters Dan Burk has about 950 poll workers that will need to be trained after his regular staff gets their training. Burk told The Observer, "My staff and I will train a minimum of 500 of those workers." After the new machines are delivered and accepted, the first order of business will be install a demonstration ballot to be used for training.
There are two periods during this election cycle set aside for early voting; August 21 through September 3, for the Primary Election, and October 16 through 29 for the General Election. According to Clark County's Lomax, early voting booths are set up in many of the shopping malls in the southern county, and as many people vote early as do on election day itself. "We use as many as 28 commercial locations including the five largest malls," he said.
That won't be the case in northern Nevada and Burk isn't sure how to get around what he considers a serious problem. "The fact is," he says, "Meadowood Mall is the largest retail location in all of northern Nevada and they won't allow us to set up early voting booths." Burk says he has pleaded with them to no avail. Meadowood has not returned our calls.
Attorney General Brian Sandoval issued a legal opinion recently that says commercial properties that allow booths to be set up for early voting purposes will not be forced to allow other political activity to take place. That may be one of the stumbling blocks as far as Meadowood Mall is concerned. Whether or not they would be forced to allow petition gathering, the passing out of election pamphlets by candidates or campaign workers, or issue campaigning.
Burk says, "We provided them with Attorney General Sandoval's opinion." He said they still said no. "This hasn't had the slightest affect on their refusal to allow us to conduct early voting at Meadowood Mall."
According to Lomax in Clark County, the commercial locations have seen considerable increases in traffic during the early voting process. Burk says, "Traffic should relate to profit."
According to Chief Deputy Parker, the VVP that Sequoia has manufactured has not been certified for use, but the certification program is underway. Parker says a division of the government that works with accuracy and reliability testing is doing the work. Secretary of State PIO Steve George says the federal election division has given full permission to Heller's office to do its own certifying as well. At this time, no certificate of use has been released.
"Certification of the printer device isn't going to be a problem," Chief Deputy Parker says. "The VVPs will be delivered no later than July 15." Since there is virtually no training involved in the use of the printer, "it simply plugs in," this is plenty of time before early voting in the Primary Election.
A lack of a printed ballot was one of the main objections to use of touch screen voting in Nevada according to Heller. During public hearings held by the Secretary of State, this was the strongest argument against the touch screen machines. "It was obvious we had to have a printed copy of the ballot," Heller said at a news conference called to introduce the Sequoia machines.
At that time, no Voter Verified Printer device was being built by any of the manufacturing firms in the voting machine business, and Sequoia took it upon themselves to manufacture such a device. That led Heller to accept the Sequoia voting machines for use in Nevada as long as there was a VVP in place.
Dan Burk in Washoe County along with clerks and registrars in 15 other counties should be receiving their new machines by next week. Washoe County has 1100 on order and should receive 300 in the first shipment. In Clark County, already using these machines, 740 will be delivered.
Gaming Interests Pull In The Big Bucks, Cry Poor
Figures from February, just released, indicate that casinos statewide have enjoyed one of the best months in years, but some casinos in Reno are asking for tax breaks, saying their property really isn't worth as much as the county might want to believe.
Statewide, the casino take during February was just shy of $876 million, up from $756.1 million a year before. Clark County as a whole showed an increase from $620.4 million in winnings to $731.2 million, while the figures in Washoe County jumped from $74.8 million to $80.8 million. The statewide figure was an increase of 15.8 percent.
Meanwhile property values for the Silver Legacy Resort Casino and Circus Circus Reno were slashed another $34 million recently. This means that during the current fiscal year, the taxable value of two of Reno's major properties has been cut by $107 million. Indications are that Circus Circus may even ask the state for further reductions. Circus Circus is a Mandalay Bay property
This, while the February figures indicate a surge of 8.5 percent in casino winnings in Reno proper. For the rest of Washoe County, Sparks showed an increase of 5.8 percent, North Lake Tahoe up 39.2 percent, and remaining portions of the county indicated a decrease of 3.5 percent.
In Clark County, the strip was up 19.5 percent, Downtown up 4.0 percent, North Las Vegas up 20.3 percent, Laughlin up 19.5 percent, Boulder up 17.2 percent, Mesquite up 3.0 percent, and the remaining portions of the county up 21.5 percent.
Many economists say there was an extra Sunday in February this year, and that may have influenced the surge in gaming statewide. An increased population and weeks of good weather were also contributing factors.
Along with the gaming win, other economic good news has been heralded recently in the Silver State. Unemployment has fallen, sales tax revenue has been climbing regularly, and room occupancy rates have either held steady or climbed.
Statewide, February's gaming figures are the third highest for any month since record keeping, but for Washoe County, it was only the second time since last June that there has been an increase.
•••
Peppermill Licenses In Jeopardy
Hearings before the Nevada Gaming Control Board are scheduled for Albert D. Seeno, Jr., and his sons who hold several licenses in the Silver State. A suitability hearing for Seeno III is scheduled for June. Seeno Jr., owns constructions companies and has been charged with associating with convicted felons while one son Albert III, and son David are accused of association with felons and with members of the Hell's Angels Motorcycle Club in California.
Seeno Jr. is licensed through a trust for 15.4 percent in Peppermill casinos, which operates the Rainbow Club in Henderson, the Peppermill in Reno, Western Village in Sparks, and two casinos in Wendover. The two sons are listed as beneficiaries of trusts holding interests in Peppermill casinos and Wendover Casinos. They are licensed at the Montego Bay Resort in Wendover as well.
The Gaming Commission could suspend the licenses, revoke the licenses and/or impose fines up to $100,000 for each violation. For instance, if found guilty and fined to the max, Albert Seeno III could face a fine of as much as $2.8 million.
Da Mayor Puts On His Own Show, Sans Dancers
The Nevada Ethics Commission scheduled their opening inquiry on the appropriateness of Las Vegas Mayor Oscar Goodman's Washington, DC parties for his son's business for May 12, and the show could go on for a few days if da Mayor's showing at one of his own press conferences is anything to judge by.
At a conference recently, Goodman stomped out after being questioned about his ethics and the scheduled inquiry. This came after Goodman just a few days earlier had told the world he would run Las Vegas anyway he wanted, that it was his city, and if we didn't like it, ... well, this is a family magazine.
Goodman has also said the entire inquiry is politically motivated. Ethics Commission Executive Director Stacy Jennings calls that nonsense. At least one more hearing is scheduled for May 12. Lists of witnesses and subpoenas related to his defense must also be submitted by an April 16 deadline.
The complaint originates with a cocktail party Mayor Goodman hosted for his son's new political consulting business. The son is a partner with city councilman Michael Mack. The cocktail party took place during a national convention of city mayors. The mayor is also accused to using a Cadillac, endorsing Bombay Sapphire Gin, and endorsing a contest for Jane Magazine.
Mayor Goodman has survived many ethics challenges over the last few years, but has never lost his cool in doing so before. His tirade with his own press conference, and his Mayor Daily retorts just days before, indicate to many that this time the Ethics Commission just may be onto something.
•••
Boggs-McDonald To Give Up Lucrative Board Of Directors Seat
When Governor Kenny Guinn announced the appointment of Las Vegas City Councilwoman Lynette Boggs-McDonald to the Clark County Commission, eyebrows were immediately raised, and questions about her seat on the Board of Directors of Stations Casinos have been bandied about since. There were questions before concerning that seat and her service on the city council. Some say being on the commission is even more difficult to accept.
Station Casinos has numerous properties outside the city and within the areas that come under jurisdiction of the county commission, including at least one property that is being discussed at commission hearings; the 198 foot tower for a hotel planned on West Charleston Blvd.
Boggs-McDonald has gone on record saying she will or already has cut her financial ties to Station Casinos. She has served on the board of directors for eight months. Her resignation from the city council is effective April 20, and she will assume her seat on the commission that same day. She says she will actively campaign for the seat during the upcoming election cycle.
The commission seat, District F, became available when Commissioner Mark James resigned because of family business. Boggs-McDonald is expected to be challenged by Assemblyman David Goldwater, a Democrat, and Senator Mike Schneider, also a Democrat. Fellow Republican Tim Cory may also announce for the seat. The primary election is scheduled for September 7.
In District F, there are about 6,000 more democrats than republicans. Boggs-McDonald was appointed to the University Board of Regents, appointed to the Las Vegas City Council, and now appointed to the Clark County Commission. She ran unsuccessfully for congress. She has been registered at times as a Democrat, and at other times as a Republican.
•••
Boulder City Recall Unsuccessful White Pine Recall Underway
"It wasn't even close," Boulder City Mayor Bob Ferraro said following the recall election held in that Clark County town recently. A movement to replace Ferraro and City Councilman Mike Pacini ended with both men holding onto their jobs with strong support from the electorate.
Ferraro and Pacini each polled about 60 percent of the vote cast, and the turn out was well above what the city has been experiencing. There are 9,246 registered voters and 5,586 voted, well above the less than 5,000 that voted in June's general election. Ferraro received 3,321 votes to retain the mayor's seat and councilman Pacini won with 3,367 votes.
In the meantime a recall of some White Pine County politicians is just now getting underway, and it's based on the water problems that are being faced in Clark County. Several groups are formed and are looking to stop the county from exporting water to the southern population center.
Petitions to recall White Pine District Attorney Richard Sears and County Commissioners David Provost and Jack Norcross are circulating at this time. One of the people behind the recall movement is JoAnne Garrett. She said ground water fights have been going on for over 15 years and they must end.
The petition drive must gather at least 766 signatures against DA Sears, and 899 against Norcross and Provost. The deadline for signature gathering is July 2. If successful in the signature drive, recall will be attached to the September 7 Primary Election in White Pine County.
Water wars are something that can be expected over the next several years if communities in the desert areas continue to grow. There are indications that exportation of water will deplete many wells and sub surface aquifers throughout the state. Snowfall in the Rocky Mountains has been well below normal, and the same can be said for the Sierra Nevada.
The mountain ranges provide the greatest percentage of water to Las Vegas and Reno. Washoe County in the north is already looking again at the possibility of importing water from the Honey Lake district of northern California while Clark County is doing the same from some of its northern neighbors.
•••
Assemblyman Wendell Williams Plans To Remain In District 6 Seat
The word from Assembly District Six is, "The
constituents want me."
Assemblyman Wendell Williams
says he plans to run for reelection despite the horrible publicity he received during and after the 2003 legislative sessions. Following disclosure that he collected his city checks along with his legislative pay, he was fired from his city job.
Along with his financial problems, he was fined for driving with a suspended license, he didn't appear in court, he was late on a fine payment from not submitting his required campaign finance reports, and he was involved in getting a friend a job with Community College of Southern Nevada (CCSN) and then using her as an office aid in Carson City.
Harvey Munford, Democrat and a long time teacher is expected to file for the seat, and Cornell Clark, a Republican and a physician is also expected to run. Williams was a top ranked Democrat in the Legislature, and was demoted by Assembly Speaker Richard Perkins (D-Henderson). Williams was kicked off the interim education committee, and Perkins says he cannot remain a part of the leadership team if he should win reelection.
It would be Williams eleventh term in the assembly.
Legislative Lives Still On Hold Supreme Court Decision Awaited
by Johnny Gunn
At this writing, The Nevada Supreme Court has not made its decision on whether public employees can legally serve in the legislature, but is expected to before the May filing period. A petition drive however, designed to forbid any government worker from serving, is being halted according to George Harris, the director of Nevadans for Sound Government. Harris believes the petition will become moot by way of the high court ruling.
Attorney General Brian Sandoval filed his writ asking the court to look at his Attorney General Opinion which says certain state government workers cannot serve in the legislature, and he also added the question about local government workers serving. The writ began at the request of Secretary of State Dean Heller.
Here is the Court case:
IN THE SUPREME COURT OF THE STATE OF NEVADA
HON. DEAN HELLER, SECRETARY OF STATE ) Case No.
OF THE STATE OF NEVADA, )
)
Petitioner, )
vs. )
)
THE LEGISLATURE OF THE STATE OF NEVADA, )
)
Respondent. )
)
PETITION FOR WRIT OF MANDAMUS
COMES NOW, the Honorable Dean Heller, Secretary of State of the State of Nevada, by and through his attorney, Brian Sandoval, Attorney General of the State of Nevada, and respectfully petitions the Supreme Court of the State of Nevada for the issuance of a Writ of Mandamus under the Seal of the Court to Respondent, the Legislature of the State of Nevada, directing said Respondent to fulfill its constitutional obligations in compliance with the provisions of the Nevada Constitution under Article 3, § 1 and Article 4, § 6 and directing such other and further relief as this Court deems proper.
This Petition is brought on the following grounds:
1. The Nevada Supreme Court has original jurisdiction to issue writs of mandamus. Nev. Const., Art. 6, § 4, NRS 34.150 et seq.
2. Pursuant to NRS 293.124, the Secretary of State serves as the Chief Officer of Elections for the State, and is responsible for execution and enforcement of all laws relating to elections in this state; the Secretary of State is sworn to enforce and uphold the Constitution of the State of Nevada pursuant to Nevada Constitution Article 15, Section 2.
3. The Legislature of the State of Nevada is vested with legislative powers of the State of Nevada pursuant to Article 4 of the Nevada Constitution; the members of the Legislature of the State of Nevada are also sworn to uphold and enforce the Constitution of the State of Nevada pursuant to NRS 218.090 and 282.020.
4. This Petition for Writ of Mandamus is filed with the Court pursuant to its original jurisdiction under Article 6, Section 4 of the Nevada Constitution and NRS 34.150 et seq.; it seeks to compel the Legislature to comply with the separation of powers provision of the Nevada Constitution with respect to the service of its members.
5. On March 1, 2004, the Nevada Attorney General issued an official opinion, in response to a request from the Secretary of State, which concluded that the separation of powers provision of the Nevada Constitution, Article 3, § 1, bars any employee from serving in the executive branch of state government and simultaneously serving as a member of the Legislature of the State of Nevada. Further, the Attorney General opined that the constitutional requirement of separation of powers is not applicable to local governments and, thus, a local government employee may simultaneously serve as such and as a member of the Nevada Legislature. (The Attorney General Opinion is attached hereto as Exhibit “A.”)
6. On January 23, 2003, the Legislative Counsel Bureau (“LCB”) for the Nevada Legislature, pursuant to a request from Assemblyman Jason Geddes, rendered its opinion that the separation of powers provision contained in Article 3, § 1 of the Nevada Constitution would not prohibit a member of the Nevada Legislature from serving while simultaneously employed by an executive agency of the State of Nevada. Previously, on January 11, 2002, the LCB also issued an opinion which reached a similar conclusion. (These LCB opinions are attached hereto as Exhibit “B-1” and “B-2”, respectively).
7. Currently, employees of the Executive Branch and various local governments also serve as elected members of the Nevada Legislature.
8. As set forth in the Affidavit of the Secretary of State, the election-filing period for the next regular election opens May 3, 2004, with a filing deadline of May 14, 2004. It is critical that both the candidates for the Legislature and the voters who may elect them know with certainty that a legislator elect will not be barred by the Constitution from serving. (Exhibit “C.”)
9. As set forth above, the
candidacy filing period for the next general election (November 2004) is May
3 - May 14, 2004. The circumstances of this matter demonstrate
urgency and strong necessity to act, and there is no plain, speedy, or
adequate remedy at law to compel the Legislature to perform its
constitutional duty.
10. The Petitioner’s request for a Writ of Mandamus is necessary in order to compel the Legislature to comply with the Nevada Constitution and the dictates of office and to prevent further harm and injury to the State of Nevada.
11. This Petition is made and based upon the Affidavit and Exhibits appended hereto, and the Memorandum of Points and Authorities filed herewith.
WHEREFORE, Petitioner respectfully petitions this Court to issue a Writ of Mandamus whereby the Court:
1. Finds service by certain members of the Nevada Legislature to be in violation of Article 3, § 1 of the Nevada Constitution;
2. Directs the Legislature to comply with Article 3, § 1 of the Nevada Constitution;
3. Determines whether certain members of the Legislature employed by local government agencies are eligible to concurrently hold public office in the Nevada Legislature in compliance with Article 3, § 1 of the Nevada Constitution;
4. Permits the Petitioner leave to amend this Petition for Writ of Mandamus to seek additional remedies in the event the Legislature fails to act as required by this Court; and
5. Directs such other and further relief as this Court determines is proper.
Respectfully submitted this day of April, 2004.
BRIAN SANDOVAL
Nevada Attorney General
Nevada Bar No. 3805
JEFF PARKER
Solicitor General
Nevada Bar No. 3187
Office of the Attorney General
100 No. Carson Street
Carson City, Nevada 89701
Telephone (775) 684-1100
Fax (775) 684-1108
Attorneys for Petitioner
Hon. Dean Heller, Secretary of State of the State of Nevada
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS
The Secretary of State of the State of Nevada petitions this Court for a Writ of Mandamus compelling said Respondent to fulfill constitutional obligations in compliance with the provisions of the Nevada Constitution under Article 3, § 1 and Article 4, § 6 and directing such other and further relief as this Court deems proper.
I. STATEMENT OF FACTS
At the request of Secretary of State Dean Heller, Attorney General Brian Sandoval issued an Opinion on March 1, 2004, concluding that it is the opinion of the Office of the Attorney General that Article 3, § 1 of the Nevada Constitution bars any employee serving in the executive branch of government and simultaneously serving as a member of the Nevada State Legislature. Further, the Opinion concluded that it is the opinion of the Office of the Attorney General that the constitutional requirement of separation of powers is not applicable to local governments; accordingly, absent legal restrictions unrelated to the separation of powers doctrine, a local government employee may simultaneously serve as such and as a member of the Nevada Legislature. The Nevada Legislative Counsel Bureau has opined differently regarding this issue.[1]
II. ARGUMENT
A. A Writ of Mandamus Should Issue to Compel the Legislature to Comply with its Duties as Required by the Nevada Constitution.
1. The Nevada Supreme Court has Original Jurisdiction to Issue a Writ of Mandamus.
This Court has original jurisdiction to issue writs of mandamus under Article 6, Section 4 of the Nevada Constitution. Employers Ins. Co. of Nevada v. State Bd. of Examiners, 117 Nev. Ad. Op. No. 24, 21 P.3d 628, 630 (2001). The Court is also statutorily empowered to issue writs. See NRS Chapter 34.160 et seq.
/ / /
2. A Writ of Mandamus is Available.
A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station. Young v. Board of County Commissioners, 91 Nev. 52, 56, 530 P.2d 1203 (1975); Building and Construction Trades Council v. State ex .rel. Public Works Board, 108 Nev. 650, 609, 836 P.2d 620 (1992) (overruled on other grounds); Brewery Arts Center v. State Board of Examiners, 108 Nev. 1050, 1054, 843 P.2d 369 (1992); NRS 34.160. A writ shall be issued in all cases where there is no plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170. Even though, as a general rule, extraordinary writs are not appropriate in the face of effective alternative remedies, it is settled law that this Court may grant such relief where the circumstances reveal urgency and strong necessity. See, Jeep Corp. v. Second Judicial District Court, 98 Nev. 440, 443, 652 P.2d 1183 (1982). Additionally, in the discretion of the court, the writ of mandamus may be returnable and a hearing may be held. NRS 34.180.
This Petition is properly brought by the Attorney General on behalf of the Secretary of State in his role as the Chief Elections Officer for the State. See State v. Curler, 26 Nev. 347, 67 P. 1075, 1076 (1902); see also 52 Am Jur 2d Mandamus § 380.
3. The Legislature is required to abide by the constitutional bar to an employee serving in the executive branch of government and simultaneously serving as a member of the Nevada State Legislature.
The Nevada Supreme Court has specifically recognized the mandatory application of the Nevada Constitution to the Legislature. “Save that the legislature must obey the direct commands of the constitution, and submit to its express or necessarily implied prohibitions, it has unlimited law-making power…” (emphasis added) Dunker v. Chedic, 4 Nev. 380, 382 (1868). In State of Nevada ex rel. Chase v. Rogers, 10 Nev. 250, 255-56, (1875) this Court said:
If one or more of the positive provisions of the Constitution may be disregarded as being directory, why not all? And if all, it certainly requires no argument to show what the result would be. The Constitution, which is the paramount law, would soon be looked upon and treated by the legislature as devoid of all moral obligations; without any binding force or effect; a mere “rope of sand,” to be held together or pulled to pieces at its will and pleasure. We think the provisions under consideration must be treated as mandatory, and agree with Judge Cooley that “there are few evils which can be inflicted by a strict adherence to the law so great as that which is done by the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed.” (emphasis added).
Similarly, in this instance, this Court must demand strict adherence to the mandates of the Nevada Constitution. Any other result will render the Nevada Constitution meaningless and unwind the thread that holds the fabric of our system of government in place. “[I]t is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication.” Id. at 254 (citing Cooley’s Const. Limitations, p. 78).
4. Mandamus Should Issue.
As noted in the Attorney General’s Opinion dated March 1, 2004, the issues presented in this Petition to the Court are unique and unprecedented in the history of the State of Nevada.
Article 3, § 1 of the Nevada Constitution states:
The powers of the Government of the State of Nevada shall be divided into three separate departments, -- the Legislative, -- the Executive and the Judicial; and 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, except in the cases herein expressly directed or permitted in this constitution.
(Emphasis added).
The first basis of the Attorney General’s conclusion is the plain language of Article 3, § 1: “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 . . ..” (Emphasis added). By differentiating between “powers” and “functions,” the Framers clearly intended the terms to have distinct and separate meanings. This conclusion is supported by Nevada case law.
In Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967) this Court affirmed that the separation of powers is “probably the most important single principle of government declaring and guaranteeing the liberties of the people.” Id. at 18. The Truesdell Court, in recognition of the magnitude of this issue, opined even further:
The separation of powers; the independence of one branch from the others; the requirement that one department cannot exercise the powers of the other two is fundamental in our system of government.
Id. at 19 (emphasis added).
More recently this Court reaffirmed its unyielding adherence to the separation of powers doctrine in Whitehead v. Comm’n on Jud. Discipline, 110 Nev. 874, 879, 878 P.2d 913 (1994). The Whitehead Court relied upon The Federalist to emphasize that “[t]he division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.” Id. (citing Galloway, 83 Nev. 13, 422 P.2d 237).
In the Truesdell and Whitehead cases, this Court was presented with the questions of whether the judicial branch could perform legislative functions and an officer of the executive branch could perform judicial functions. In both instances, the Court soundly rejected such a notion, finding that such conduct would violate the principle of separation of powers contained in Article 3, § 1 of the Nevada Constitution.
The question now presented raises the same dilemma but concerns, for the first time, executive branch and local government employees’ service in the Nevada Legislature.
As enunciated by this Court, the powers and functions of each Department consist not only of those that are expressed in the Constitution, but also the inherent and incidental powers that the Court has termed “ministerial.” See Galloway, 83 Nev at 21, 422 P.2d at 243. The Constitutional powers of each Department cannot be exercised without these inherent ministerial functions, which “are methods of implementation to accomplish or put into effect the basic function of each Department.” See Id.
This Court has confirmed that “it is in the area of inherent ministerial powers and functions that prohibited encroachments upon the basic powers of a Department most frequently occur,” and cautioned against “even one seemingly harmless . . . encroachment.” See Id. (emphasis added). It is apparent then, that this Court has recognized that the principle of separation of powers not only precludes the simultaneous exercise of express, or sovereign power, but precludes the simultaneous exercise of any power or function.
The Truesdell Court did more than just warn of the risks associated with overlapping functions between the three branches of government. It also articulated the consequences of such a merger and the destructive results that would come about if such an encroachment were allowed to occur:
All Departments must be constantly alert to prevent such prohibited encroachments lest our fundamental system of governmental division of powers be eroded.
To permit even one seemingly harmless prohibited encroachment and adopt an indifferent attitude could lead to very destructive results. . . .
It is essential to the perpetuation of our system that the principle of separation of powers be understood. The lack of understanding about the principle is widespread indeed, and creates a problem of no small proportions. There must be a fullness of conception of the principle of the separation of powers involving all of the elements of its meaning and its correlations to attain the most efficient functioning of the governmental system, and to attain the maximum protection of the rights of the people.
Id. at 22 (emphasis added).
Based on the foregoing, this Court has plainly stated its intention to prohibit even “harmless” encroachments upon the “fundamental system of governmental division of powers.” Such a statement is extremely significant to whether executive branch and local government employees can serve in the state legislature, in that the statement supports the notion that the term “functions” be interpreted broadly to include the work of employees of a branch of State government.
It is important to note that the framers of the Nevada Constitution modeled the Nevada Constitution after the California Constitution. This Court has held that:
. . . since Nevada relied upon the California Constitution as a basis for developing the Nevada Constitution, it is appropriate for us to look to the California Supreme Court’s interpretation of the . . . language in the California Constitution.
See State of Nevada, ex rel. Harvey v. Second Judicial District Court, 117 Nev. 754, 763, 32 P.3d 1263, 1269 (2001).
Indeed, Article 3, § 1 of the Nevada Constitution is identical to the then‑California separation of powers provision contained in Article 3, § 1 of the California Constitution, which was ratified in California in 1849. Thus, as this Court has previously stated, it is appropriate to look to California legal decisions that reviewed the issue of separation of powers. See Harvey v. Dist. Ct., 117 Nev. at 763, 32 P.3d at 1269.
The California Supreme Court has found that senators and members of the Assembly cannot simultaneously serve in the executive and judicial departments, as defined in Articles V and VI [of the California Constitution]. See Staude v. Board of Election Comm'rs, 61 Cal. 313 (1882). Another California court has found that employees of the executive branch could not also belong to the judicial branch. In Elliott v. Van Delinder, 77 Cal. App. 716, 247 P. 523 (1926), the court decided that the inhibition contained in Art III [of the California Constitution] affects the title to offices and means that no person shall hold positions under different departments of the government at the same time; a person cannot be an employee of the state department of engineering and at the same time be a justice of the peace.
Obviously, these decisions do not construe the Nevada Constitution. However, they are relevant for two reasons. First, they were based on an analysis of a separation of powers provision that was identical to Nevada’s Article 3, § 1. Second, they support the findings of this Court in Truesdell and Whitehead. Clearly then, based on the plain language of the Nevada Constitution, this Court’s prior rulings on the separation of powers doctrine, and the relevance (due to the correlation between Nevada and California’s Constitutions) of the California court’s analysis, any person who is employed by the executive branch of the government is constitutionally prohibited from simultaneously serving as a member of the Nevada State Legislature.
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Additionally, various members of the Legislature are believed to be employees of local government. The Legislative Counsel Bureau’s legal opinion appears to agree with the opinion of the Office of the Attorney General with respect to the eligibility of local government employees to hold public office in the legislative branch.
However, this Court recently recognized local school districts to be subdivisions of the state. Harris Assoc. v. Clark Co. Sch. Dist., 119 Nev. Adv. Rep. 66, 81 P.3d 532 (2003). As such, employees of local school districts are arguably employees of the executive branch of state government rendering them ineligible to simultaneously hold public office in the legislative branch. The same rationale appears to also apply to employees of the state district courts. A concern has also been expressed that other county employees are also members of the state executive branch of government rendering them ineligible to hold public office in the legislative branch. Editorial: A matter of clarity, Las Vegas Review-Journal, March 29, 2004. In support of that argument, the editorialists referred to the Governor’s power to appoint a county commissioner.
This Court must, therefore, resolve whether agencies typically thought of as local government agencies are in fact state agencies for the purposes of Article 3, § 1. If agencies, such as local school districts and state district courts, are subdivisions of the state, their employees may also be excluded from holding office in the legislative branch of state government. If so, the Court must order that the Legislature also declare those members of the Legislature to be ineligible for public office.
In closing, it is important to recall the words of United States Supreme Court Justice Louis Brandeis in his dissenting opinion of Myers v. United States, 272 U.S. 293 (1926):
The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.
III. RELIEF SOUGHT
Petitioner respectfully petitions this Court to issue a Writ of Mandamus whereby the Court:
1. Finds service by certain members of the Nevada Legislature to be in violation of Article 3, § 1 of the Nevada Constitution;
2. Directs the Legislature to enforce Article 3, § 1 of the Nevada Constitution;
3. Determines whether certain members of the Legislature employed by local government agencies are eligible to concurrently hold public office in the Nevada Legislature in compliance with Article 3, § 1 of the Nevada Constitution;
4. Permits the Petitioner leave to amend this Petition for Writ of Mandamus to seek additional remedies in the event the Legislature fails to act as required by this Court; and
5. Directs such other and further relief as this Court determines is proper.
Respectfully submitted this _____ day of April, 2004.
BRIAN SANDOVAL
Nevada Attorney General
Nevada Bar No. 3805
JEFF PARKER
Solicitor General
Nevada Bar No. 3187
Office the Attorney General
100 No. Carson Street
Carson City, Nevada 89701
Telephone (775) 684-1100
Fax (775) 684-1108
Attorney for Petitioner
Dean Heller, Secretary of State Of the State of Nevada
VERIFICATION OF BRIAN SANDOVAL
STATE OF NEVADA )
):ss.
CARSON CITY )
BRIAN SANDOVAL, being first duly sworn, deposes and says:
1. That your affiant is the duly-elected Attorney General of the State of Nevada, and represents Petitioner in the above-entitled Petition for Writ of Mandamus, and is familiar with the facts and circumstances set forth therein and knows the contents thereof to be true, except for those matters stated upon information and belief, and as to those matters, he believes them to be true.
2. That affiant makes this verification pursuant to NRS 15.010, NRS 34.040, NRS 34.170 and NRS 34.330, rather than Petitioner, because the facts relevant to this Petition are within my knowledge as attorney for Petitioner, and on the public records of the Legislature of the State of Nevada.
3. True and correct copies of materials that may be essential and/or helpful to an understanding of the matters set forth in the Petition are contained in the Affidavits and Exhibits attached to this Petition.
FURTHER AFFIANT SAYETH NAUGHT.
DATED this _____ day of April 2004.
______________________________
BRIAN SANDOVAL
SIGNED and SWORN to before me
This ____ day of ________, 2003
By BRIAN SANDOVAL.
___________________________
Notary Public
C:\Files\Parker\Submission of Controversy\Petition for Writ -FINAL.doc
Candidates for public office must file their intentions during the period May 3-14 and both Sandoval and Heller want to have this question answered before that time. Several legislators are also employees of state agencies, and the Supreme Court decision will play a big part in whether or not they will be able to run for reelection.
Retiring Supreme Court Chief Justice Miriam Shearing has given the Legislature 30 days to respond to Sandoval's law suit, and said the court will act as quickly as possible, noting that Secretary of State Heller has "No plain, speedy and adequate remedy in the ordinary course of the law." In other words, those legislators who are most at risk should see to it that this litigation comes to an end as soon as possible.
Senator Dina Titus (D-Las Vegas), one of those who might be affected by the court's decision says Legislative Counsel Brenda Erdoes will defend the legislators. The suit is brought against the entire legislature, not just those representatives who might most be affected. There are currently nine members of the legislature who also hold government jobs.
It's the separation of powers between the Executive, Legislative, and Judicial branches of Nevada government that is at the heart of the suit. By issuing his opinion, Attorney General Brian Sandoval created the question, but an opinion is not binding. The suit before the Supreme Court will be binding and will affect elections for years to come.
[1] See Ltr. Op. Nev. LCB to Assemblyman Lynn Hettrick (February 4, 2002); Ltr. Op. Nev. LCB to Assemblyman Jason Geddes (January 23, 2003).
The Buzz Around the Silver State
Compiled by our Correspondents
From Clark County
CCSN: Sex, Lies, But No Video Tape
(Las Vegas) --- A Community College of Southern Nevada (CCSN) employee has filed sexual harassment charges against Regent Jack Schofield and this has now blown into one more war on campus, with charges of political skullduggery and breaking of confidentiality.
After a woman employee charged Schofield with sexual harassment, Schofield said the charges were politically motivated because of his stand on firing CCSN lobbyist John Cummings, and then Cummings said Schofield broke all the confidentiality rules by releasing the woman's name. The woman in question reportedly works for Cummings.
At this time, University Chancellor Jane Nichols has said the University System has done all it plans to do as far as the original charges are concerned. As far as confidentiality goes, it was pointed out that in the rules, it says confidentiality is important but not guaranteed.
Cummings is calling for a thorough inquiry of the situation. It is alleged that the woman was an employee of Cummings and that the charges against Schofield may have developed from that.
This could go on for as long as CCSN exists. There are still numerous lawsuits pending over the firing of Cummings and the demotion of the school's president.
The harassment complaint has been forwarded to the Nevada Equal Rights Commission and the federal Equal Employment Opportunity Board.
•••
Lights Out
(Las Vegas) --- It was lights out early Easter Sunday at the Bellagio on The Strip, and so far, nobody seems to know why. About 2:00 O'clock Sunday Morning the lights went out all over the hotel, and since then some 8,000 employees have been out of work, many without pay. Thousands of hotel guests had to be relocated as well.
Officials from the Bellagio and Nevada Power are taking the electrical system apart, piece by piece, until they find the reason for the failure. No other Strip casinos were affected by the outage and there have been no injuries associated with it.
•••
Just A Workin' On The Railroad
(Las Vegas and Washington) --- The federal Department of Energy (DOE) insists the best way to bring highly radioactive waste to Yucca Mountain is by rail and they insist they will build a 319 mile line across and up and down the Silver State, despite the fact that Yucca Mountain hasn't been certified yet.
There are nuclear weapons plants and commercial nuclear power generating plants in 39 states at this time. Besides the rail lines in the country, and the new line in Nevada, DOE says they will be using waterways around the country, in such places as Chesapeake Bay, the Great Lakes, and The Hudson, Mississippi, and Missouri rivers to haul waste to rail heads in barges.
The transportation plan covers a time line of about 24 years. Farmers, ranchers, miners, and others living along the area the DOE intends to use for their new rail line in Nevada say they have not been contacted about their views, and that public hearings have not been scheduled. The rail line is expected to begin at the southeast border of Nevada and Utah, travel north into Nye County, then west and eventually swing south through Esmeralda County and back into Nye County and Clark County to arrive at Yucca Mountain.
Some see the rail line as a generation's long project while DOE insists it will be a done deal within eight to ten years.
Washoe County
Lake Mansion To Be Moved To Downtown
(Reno) --- The new site for Reno's historic Lake Mansion, built in 1877, will be on downtown city-owned property that is now a 53-space parking lot at the intersection of Arlington Avenue and Court Street.
The Reno city Council authorized a lease for the 17,547 square foot site with VSA arts of Nevada. The non-profit organization has been raising funds to move the structure from its current location on the southwest corner of the Reno Sparks Convention Center property, where it has been for about the last 26 years. A preliminary estimate for the move set in 1992 was $982,000. VSA arts of Nevada already has arranged for and obligated almost all necessary funding for the move which will put the mansion within the city's expanded arts and cultural district. The site ranked highest of nine sites considered for the relocation. VSA arts of Nevada will pay the city $500 for use of the land the first year, with three percent increases for subsequent years. The lease will reviewed every three years.
VSA Arts of Nevada occupied the structure as its office since 1996 but moved out of the mansion at the request of RSCVA in March of 2001, at the beginning of the convention center remodeling. The organization has since occupied gallery space at the city's Sierra Street parking gallery downtown. VSA arts of Nevada was incorporated as a non-profit organization in 1986 to promote development of quality programs throughout Nevada integrating arts into the lives and education of children, youth and adults, especially those who are disadvantaged or have a disability. The organization plans to return its offices to the building and also use it as a cultural center. The new location is close to Wingfield Park where several cultural special events are held during the year.
Myron C. Lake built a toll bridge across the Truckee River in 1862, just three years after the wild discovery of silver in what is now Virginia City. Knowing there would be massive amounts of traffic coming over the Sierra Nevada Mountain Range, bringing supplies to the growing Queen of the Comstock, Lake built the bridge on what was originally known as Fuller's Crossing, and operated the toll station until his lease ran out in 1871. Lake's Crossing became known as Reno after the Central Pacific Railroad laid rails through Nevada.
The Italinate style home was purchased by Myron C. Lake, considered the founder of Reno, in 1879. It was built in 1877 by Washington J. Marsh who sold it to Lake. Ironically, Lake did not live in the mansion, which became the property of his wife after they divorced. Jane Lake and her children moved into the home in about 1882 and remained there through the turn of the Century. She later sold the house to Otto and Tina Herz. Myron Lake remarried in 1883, but died in 1884 at the age of 56.
•••
Reno ReTrac Updates
(Reno) --- As we said above, Reno came on line as a city because of the railroad and ever since that auspicious day, city fathers have attempted to get rid of the iron horses travelling through town. The latest project, and one that will cost a quarter of a billion dollars ($264,019,072 at last count), is called ReTrac. Bury the tracks below the natural water level in the ground, and let e'm run full steam through town.
Will it work? We'll have to wait another couple of years to find out. In the meantime, work has been progressing on building what's called a "Shoofly" track alongside the Intercontinental Main Line. According to Reno City officials, trains now will run on the "Shoofly" instead of the mainline, and the 125-year-old main line will be ripped and sundered.
When the old tracks have been removed, a trench several miles long will be dug out, new rails laid, and bridges built across all the city streets that have been so overburdened by rail traffic for more than a century.
Of course, it wasn't until hotels were built alongside the tracks that the howling started. That's probably not entirely true, but for the old timers around the Truckee Meadows, it sure seems like it. The city calls it a critical project, but during a non binding vote at a recent election, the general public felt the project a total waste of time and money.
Regardless, if you're a pedestrian or driver, and you're used to some of the crossings, beware, friend. The tracks are now about 20 to 25 yards to the south of where they've been for the last 125 years.
•••
County To Sell Tax Delinquent Property Online Bidding To Begin April 21
(Reno) --- Washoe County is holding its tax delinquent property Real Estate auction online for the first time ever this year. More than 100 properties are a part of the auction, which is a joint auction with White Pine and Lander Counties.
"Considering the track record of Internet auctions, we should experience far more bidders than ever before," Bill Berrum, Washoe County Treasurer said. "Our goal is to seriously reduce our inventory of tax delinquent properties and get them back on the productive tax roll."
Customers without Internet access may place bids for the property offline by calling the Treasurer's office or the company handling the online auction, Bid4Asset.com.
Bid forms can be acquired by telephoning Bid4Assets at 1.877.427.7387, or they may be picked up at the Washoe County Treasurer's office at 1001 E. Ninth St., Bldg. D Room 140. The Treasurer's office will provide a computer for customers to use for bidding purposes, however staff cannot place bids or operate the computer for the customer.
A list of the parcels for sale by Washoe County is available at www.bid4assets.com, or the Washoe County web site at <http://www.co.washoe.nv.us/treas>, or at the Treasurer's office.
Bidders interested in bidding should go to Bid4Assets.com and follow the instructions on the Bid4Assets home page to register as a buyer. Washoe County requires that bidders make a deposit through eDeposit Corporation prior to bidding. Bidders must fund their accounts with a pre-bid deposit amount equal to 10% of the minimum bid, for each parcel on which they are interested in bidding.
The auction will begin at 8:00 AM PST (11:00 AM EST) on April 21, 2004, and will close no later than 3:00 PM PST (6:00 PM EST) on April 27, 2004.
Please see each parcel for specific closing times.
The successful bidder must provide payment in full by 1:30 PM PST (4:30 PM EST) on Friday April 30, 2004, which is the third business day following the close of the auction.
All sales will be made subject to existing rights of way and easements of Washoe County, Nevada, or the State of Nevada. These properties are offered for sale "AS IS, WHERE IS". Prospective purchasers are urged to examine the title, location and desirability of the properties available to their own satisfaction prior to the sale. The County makes no guarantee, expressed or implied, relative to the title, location or condition of the properties for sale. The County makes no representation or claims as to fitness for purpose, ingress/egress, conditions, covenants, or restrictions. All property taxes currently due will be paid from the proceeds of the sale.
Washoe County recommends that all prospective buyers obtain a title search on the property or properties, in which they have interest, as Washoe County does not guarantee title.
A link to Assessor's office parcel maps is provided on the www.bid4assets.com website as well as on the Washoe County web site at <http://www.co.washoe.nv.us>. Copies of maps are available in the Washoe County Assessor's office (Rm. D100), which is located next to the Treasurer's office.
•••
Carson City
The 2003 Legislature Is Still In Session
(Carson City) --- A federal appeals court petition will hold session at Stanford University in California to determine whether or not the 2003 Legislative session was correct, or whether the Nevada Supreme Court acted properly in the huge tax increase that is now being collected across the Silver State.
Did Federal District Court err in dismissing a case brought by many Republican lawmakers and others, following the Nevada Supreme Court ruling that forced the lawmakers into a third special session? The legislature was acting on the belief that a constitutional amendment, passed twice the electorate and signed by the governor, was law, and forced a two thirds majority vote to increase taxes.
The Supreme Court in a 6-1 decision, said that in this case, since the subject was whether or not schools would be funded, the two thirds majority law didn't apply. The high court said it was imperative that schools be funded before other budget items be discussed.
The lawmakers eventually passed Governor Kenny Guinn's massive $833 million dollar tax increase, and by that two thirds majority, but many lawmakers joined in the litigation that the Ninth Circuit Court of Appeals has been discussing.
At this time, two petitions are being circulated in the state to guarantee that education funding will be done before any other budgetary items. One of those petitions is from Assemblywoman Dawn Gibbons (R-Reno), and the other sponsored by the Nevada teacher's union. Both are being warmly received.
•••
The Bridge That Isn't
(Mound House) --- Transportation difficulties have slowed the bridge that has been demolished in southern Nevada and scheduled to be the Virginia & Truckee Railroad bridge over Highway 50 in Mound House. The bridge will be hauled on several semi trailer trucks, and will need Nevada Highway Patrol guidance on its trip north for obvious safety reasons.
It's possible the bridge will make its way south to north from April 16 to 18, but this is still tentative according to Granite Construction Company, the main contractor.
The Virginia & Truckee Railroad is being rebuilt to run from Virginia City, its original home, to the capital, but needs to cross busy U.S. Highway 50 at Mound House before the line can then be laid along the Carson River through the Carson Canyon.
The Bank of California originally built the short line to haul ore to mills along the Carson River, then took the line into the capital, eventually running north to connect with Theodore Judah's Central Pacific. It was one of the richest little lines in the west, and tourist officials in Carson City and Virginia City hope it will regain some of its glory by bringing tourists to the Comstock.
•••
Money, Money, And More Money
It's a transportation bill but it isn't through with its own travels just yet. The House of Representatives passed a $275 billion bill to build, repair, and design highways across the country with $1.6 billion earmarked for Nevada. But don't jump up and down just yet. The Senate of course has its own version of a transportation bill, and the two houses of Congress will have to negotiate a compromise before all of this is sent to the president for his signature.
It's a lot of money and it will do lots of good work, but it isn't law quite yet. Among the project discussed for this money are southern Nevada highway jobs, northern Nevada highway jobs, and rural Nevada highway jobs. Duh!
Watch this space for continuing details.
•••
Elko County
Wild Horses Instead of Iron
(Elko) --- Too many wild horses, not enough forage to support them. The Elko County Commission is about to take on the feds one more time, with pitch forks this time, instead of shovels. Ranchers in Elko County are complaining that wild horses are destroying land they have federal leases on, leases that say they can run their cattle.
At the federal level, according to the commissioners, wild horses are at the top of the ladder, but Nevada Assemblyman John Carpenter (R-Elko) says the problem needs to become a state issue if any action is to take place.
Carpenter, a rancher himself, and others, including commissioner Charlie Myers, is sending a letter to Governor Kenny Guinn asking him to rescind his threatened letter to the feds over funding of wild horse round ups. The state Wildlife Commission wants to sue the Bureau of Land Management (BLM) for mismanagement of the range, and its 18,000 wild horses and burros.
Interestingly, Nevada is home to more than half the wild horses and burros in the west. Myers has been quoted as saying, "This really has a dramatic impact."