Court asked to define residency

Nevada Supreme Court justices heard arguments Friday in a case state and county election officials fear could tear down the definition of residency for candidates and voters.

The case seeks to remove Robert Miller as Ely mayor because he wasn't a resident of the city for a full year before his election in 2002.

The Nevada Constitution and state law require mayoral candidates be residents of a city a year before they take office and for at least 30 days before they can file for the office. Under earlier Supreme Court rulings, that means "actual residency" as opposed to "legal residency," which could be a post office box in the city.

Miller ran for and won a second term as mayor even though he had lived outside the city limits two years before his re-election.

His lawyer Larry DiGrazia convinced district judge Andrew Puccinelli that Miller qualified because he moved out of town to take care of his elderly, ailing mother and never intended to give up residency. He said Miller had been an Ely resident 30 years and met the intent of the state law because he intended to return to Ely.

He moved back into town five months before he took office and two or three days after the 30-day deadline for filing for office.

Patty Cafferatta, representing George Chachas in his challenge of Miller's candidacy, said that isn't good enough.

"He should have resigned when he moved out," she told the court. "The law says if you vacate your residence for 30 days, you're no longer able to hold office.

"He says he intended to return. If intent is enough, then how do registrars of voters determine who is eligible? I live in Reno. I intend to move to Las Vegas, so I'm going to file for office down there. Is that OK?"

DiGrazia asked the court to interpret residency as meaning "legal residence," which can be a post office box rather than the place someone actually lives.

"There was substantial compliance," he said, adding that Miller lived just outside the city line for the two-year period.

Chief Justice Deborah Agosti said she was sympathetic because Miller was a longtime resident of the Ely area, but questioned whether the court could rule that "actual residency" was the same as "legal residency" when it has made a clear distinction between those definitions in the past.

"How do we prevent an onslaught of bogus candidacies?" she asked.

She told DiGrazia that adopting his theory "would mean ignoring the plain language of the statute."

Carson City Clerk Alan Glover, representing Nevada's county election officials, said the issue is vitally important to county clerks because, if actual residency isn't required, they won't be able to determine who can run for a local office or who can vote.

"We need it in black and white," he said. "You either live in a location or not, because we can't interpret intent."

Ronda Moore, elections deputy for Secretary of State Dean Heller, said actual residency is "a linchpin on which the right to vote depends."

"If intent is what matters instead of where someone actually lives, then the clerks can't do their job and determine who qualifies to vote in an election," she said.

The high court took the case under submission.

If the court removes Miller as Ely mayor, the city council would appoint his replacement. But when Justice Nancy Becker asked why they wouldn't just reappoint Miller, Cafferatta said they couldn't at this point because "he still hasn't lived in the city for a year."

They could, however, after Jan. 10, the anniversary of Miller's return to the city.