On April 2, 2004, The Honorable Dean Heller, Secretary of State of the State of Nevada, sought an original petition for a writ of mandamus by the Nevada Supreme Court to compel the state Legislature (as a whole) to enforce separation of powers. The Secretary challenged whether state government employees’ service in the state Legislature (dual service) violated the constitutional separation of powers doctrine and questioned whether local government employees’ service in the Legislature also violated the separation of powers. The petition asked the court to: (1) find that service in the Legislature by “certain,” unidentified state executive branch employees violated separation of powers; (2) direct the Legislature as a whole to enforce separation of powers; and (3) determine whether service in Legislature by local government employees violated the separation of powers. The Secretary relied upon a March 1, 2004 Attorney General opinion that concluded that the separation of powers “bars any employee serving in the executive branch…[from] serving simultaneously 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 that listed numerous bars to mandamus relief; asserted the Secretary’s only “judicial recourse is to bring an appropriate judicial action against the individual legislator…;” and concluded a legislator’s service in state or local government employment did not violate the separation of powers. The Nevada Faculty Alliance, the American Civil Liberties Union of Nevada, various educational associations and a consortium led by the Las Vegas Police Protective Association, Metro, Inc. were permitted to file amici briefs. The amici all joined against the Secretary. On May 20, 2004, the Secretary replied to the Legislature’s answer, and partially altered the relief sought to request an interpretation by the court of Nevada Constitution, Article 3, Section 1(1) (separation of powers)2, as it pertains to executive branch employees serving in the Legislature and for the court to order the Legislature to use that interpretation in its discretionary duty to judge the qualifications of its members under Article 4, Section 6.3 The relief sought would have applied on a prospective basis only beginning with the February 2005 start of the Legislature’s 73d regular session. After an en banc hearing, Nevada Supreme Court Chief Justice Miriam Shearing, and Justices Deborah Agosti, Robert Rose, Nancy Becker, A. William Maupin, Mark Gibbons, and Michael Douglas, in a per curiam opinion, denied the petition, holding that: (1) the Secretary of State did not have standing to seek mandamus relief; (2) the Secretary sued the wrong party at the wrong time in that each house of the Legislature has the right to judge member qualifications without interference from the other house and the Legislature, as a whole, cannot be compelled or have legal authority to perform that duty and no concrete controversy yet existed for the court to resolve; (3) quo warranto4 was the proper mechanism to challenge title to a public office, not writ of mandamus, with each individual legislator named as quo warranto respondents; (4) the Legislature could not exempt its members from quo warranto suits; and (5) the separation of powers doctrine barred judicial review of state employees’ service in the Legislature.
Brown, Keith, "Summary of Heller v. Legislature, 120 Nev. Adv. Op. No. 51" (2004). Nevada Supreme Court Summaries. 651.