The Nevada secretary of state and county election officials have joined a battle to overturn an Ely judge's ruling they say throws out residency requirements for candidates and voters.
The case centers on whether Robert Miller should be removed as Ely's mayor because he wasn't a resident of the city for two years before his election this past summer.
The Nevada Constitution and state law require mayoral candidates be residents of the city a full year before they take office and at least 30 days before filing for the office. That has always been interpreted to mean "actual residency" as opposed to "legal residency," which could mean simply maintaining a post office box in a district or city.
Miller's candidacy was challenged by George Chachas of Ely. But Judge Andrew Puccinelli of Elko ruled Miller qualified to run even though he had been living outside Ely's city limits for two years.
"Miller did not lose his legal domicile in the city when he moved into the Mineral Heights residence for the purpose of caring for his aged and ailing mother," the judge ruled.
"This appeal is brought because the district judge found the residency requirements for mayor did not mean actual residency," wrote Patty Cafferatta in filing the appeal for Chachas. She protested the argument that living outside the city limits was all right because Miller "intended to return to the city."
"If this is a correct statement of the law for mayoral candidates, then residency requirements for all other candidates are not enforceable," she argued.
Cafferatta said that logic could be applied to voters as well.
The secretary of state's office filed a brief backing those arguments, saying state law requires "actual residence" in a city for a full year. The brief said previous Supreme Court cases have required "both physical presence and intent to remain at a residence."
County election officials argued in a separate brief the decision will cause serious problems for clerks trying to decide whether a person is qualified to vote in a given district or city since the same logic could be applied to voters.
Miller's attorney Gary DiGrazia said he "substantially complied" with the state law because he kept a mailbox in the city and kept that post office box as his address on his driver's license. He also said Miller maintained an address in Ely even though he only slept there one night in two years time.
Cafferatta, however, pointed out that the official DMV records show Miller's address in Mineral Heights, outside Ely's city limits. She argued Miller moved back to the city Jan. 10 -- two days too late to meet the 30 day requirement before close of filing for municipal office. And that meant he was only an Ely resident five months before taking office -- far less than the mandatory year.
"The facts the court relied upon to find that Miller was a resident of the city have nothing to do with residency," she said.
Those included the location of his P.O. Box, his bank, his frequent visits to city hall and his 30 years prior residency.
"No one lives in a post office box, bank or City Hall," Cafferatta argued.
She also pointed out that when Miller's right to vote was challenged in the November 2002 elections, he refused to produce evidence he had a residence in Ely and refused to fill out a voter affirmation, instead deciding not to vote that day.
The case is scheduled for oral arguments before the full court Nov. 14.
