Nevada Supreme Court Justice James Hardesty is under consideration to be the next chancellor of the Nevada System of Higher Education, pending a delayed search process and an unresolved legal question over the ability of a sitting judge to take the position.

Although applicants for the chancellor position are still considered confidential at this point, Hardesty’s application for the position became public in motions filed by his attorney and attorneys for the higher education system last week seeking an expedited ruling on how to interpret a constitutional prohibition on sitting justices taking another office during their term.

“As this search process moves into its public and final phase, a novel and unresolved issue of statewide public importance has emerged as whether a finalist for the Chancellor position, who is also a sitting member of the judiciary, can be appointed by the Board of Regent to the position consistent with constitutional proscriptions,” NSHE general counsel Joe Reynolds wrote in the motion.

Hardesty voluntarily recused himself from the case, and an attorney representing him disclosed that he is an applicant for the position and requested the rest of the court hear the motion on an expedited basis. 

Chancellor Thom Reilly’s contract expires in August 2020, and he informed the Board of Regents in July 2019 that he did not plan to seek any contract extension. Although the search process has been delayed by the COVID-19 outbreak, Reynolds wrote in the motion that the higher education system would like a new chancellor in place by July 2020 and convened a search committee last year to begin the process of finding a replacement chancellor.

Reynolds wrote that although Hardesty had “satisfied the internal review screening” last month, a legal question still existed over a state constitutional provision that state Supreme Court justices “are ineligible to any office, other than a judicial office, during the term for which they have been elected or appointed.”

Hardesty won another six-year term on the Nevada Supreme Court during the 2016 election, and his current term will expire in January 2023.

In his motion, Reyonlds wrote that the position of chancellor should not be considered an “office” within the constitutional meaning, and was “more akin to that of an employee and agent of the Board of Regents than it is to an office that exercises sovereign and independent government authority.”

Reynolds also said the district disagreed with a 2002 opinion from the state attorney general’s office stating that even if a justice resigned their position, they would still be ineligible to hold any office during the length of their original term.

“Resigning from the judicial office eliminates that possibility,” Reynolds wrote. “To interpret this phrase to the contrary would unfairly penalize a member of the judiciary by tethering him or her to the obligations of an unexpired judicial term long after the authority, responsibilities, and salary of that judicial position have been relinquished.”

In a brief interview on Friday, Hardesty said he agreed with NSHE that the 2002 attorney general’s opinion was misguided, but wanted to clear up any “uncertainty” by seeking an opinion from the state’s highest court.

NSHE Supreme Court motion by Riley Snyder on Scribd