The Nevada Constitution establishes a State Government consisting of the Legislative, Executive and Judicial Departments. (Nev. Const. Art. 4, 5, 6) However, the Nevada Constitution does not similarly establish local governments and instead requires the Legislative Department to establish counties and townships and provide by law for cities and towns. (Nev. Const. Art. 4, § 25, Art. 8, § 8) Accordingly, although the Nevada Constitution contemplated the necessity of such local governments, it left the creation and regulation of such bodies to the Legislative Department. The framers of the Nevada Constitution created a system of checks and balances such that “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 expressly directed or permitted in this constitution.” (Nev. Const. Art. 3, §1) Based on the constitutional separation of powers, the judiciary has inherent authority to manage and control its employees, including their selection, appointment, promotion, discipline and termination, and if the other branches of government take any legislative or executive actions that directly interfere with the judiciary's personnel decisions, such interference violates the separation of powers doctrine because it unconstitutionally infringes on the judiciary's inherent authority to manage and control its employees. (City of Sparks v. Sparks Mun. Court, 129 Nev. 348, 362-66 (2013)) However, the Nevada Supreme Court recently ruled that “local government employees are distinguishable from employees of a state government department for separation-of-powers purposes, and local executive department employees are not within the state executive department.” (Nevada Policy Research Institute, Inc. v. Miller, 140 Nev. Adv. Op. 69, 558 P.3d 319, 329 (2024) (holding among other things that the separation of powers doctrine did not bar certain county employees whose duties were executive in nature from simultaneously serving in the Legislative Department) To reach that conclusion, the Nevada Supreme Court considered the separation of powers provision of the California Constitution, upon which Nevada relied in drafting its own nearly identical constitutional provision. (Id. (citing County of Mariposa v. Merced Irrigation Dist., 32 Cal.2d 467, 196 P.2d 920, 926 (1948)) (“It is settled that the separation of powers provision of the [California] constitution, art. 3, § 1, does not apply to local governments as distinguished from departments of the state government.”) The Nevada Supreme Court adopted the position of the California Supreme Court on this issue, citing that “[t]he court distinguished these state governmental powers from those established for local governments subsequently created by legislative enactment and held that the separation of powers governing the state did not apply to local governments.” (Miller citing People ex rel. Att'y Gen. v. Provines, 34 Cal 520, 533-34) (1864)) Finally, the Nevada Supreme Court turned to other state high courts that have ruled similarly. (Miller citing Tendler v. Thompson, 352 S.E.2d 388, 388 (Ga. 1987) (“The doctrine of separation of powers applies only to the state and not to municipalities or to county governments.”) Under existing law, in each county whose population is 700,000 or more (currently only Clark County), the judge of each district court and the justice of the peace of each justice court, or the board of county commissioners under certain circumstances, may appoint a deputy marshal for the court instead of a bailiff, and the deputy marshal serves at the pleasure of the judge or justice making the appointment. (NRS 3.310, 4.353; State ex rel. Vogel v. Grierson, No. 62225 (Nev. Mar. 21, 2014) (explaining that deputy marshals “are more like employees than public officers because each ‘deputy marshal serves at the pleasure of the judge he or she serves.' ”) Although existing law provides that deputy marshals serve at the pleasure of the judicial officer, deputy marshals are peace officers who are authorized to perform various duties that are executive in nature. (NRS 3.310, 4.353, 617.135) This bill revises existing law relating to bailiffs and deputy marshals under certain circumstances. Specifically, this bill: (1) provides that bailiffs and deputy marshals in a county whose population is 700,000 or more are local government employees of the county; (2) establishes provisions governing the assignment of such bailiffs and deputy marshals for the court, in lieu of such persons being appointed by the judge or justice of the peace; (3) removes the requirement for deputy marshals to comply with any duties prescribed by the judicial officer; (4) authorizes a bailiff or deputy marshal to provide service of process; and (5) removes the requirement for bailiffs and deputy marshals to give a bond.

Statutes affected:
As Introduced: 3.310, 4.353
BDR: 3.310, 4.353