Frankly, it sounds like a self-contradictory argument. Or circuitous at best.
Until the 1960s, it was largely agreed that public employees could not also serve in the Nevada Legislature.
This was because the Separation of Powers Clause in the state Constitution stated that no one who exercised power in one branch of state government — legislative, executive or judicial — could “exercise any functions” in another branch, no matter how menial.
But along the way a couple of non-binding legal opinions found that it was OK for someone to exercise legislative powers so long as that person did not exercise “powers” — rather than the all-inclusive “any functions” — in another branch.
With the flood gates open, there have been years in which nearly half the lawmakers in Carson City were either government employees or the spouses of government employees. In some years every Senate and Assembly leadership post was held by a public employee. Currently nearly a dozen lawmakers hold down state or local government jobs.
Recognizing the growing problem, in 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy this skirting of the Constitution. Heller asked the court to find that service in the Legislature by unidentified executive branch employees violates the concept of separation of powers and to direct the Legislature to enforce the Separation of Powers Clause.
But the court ruled that doing so would violate — wait for it — the Separation of Powers Clause, because the Constitution also states that the Senate and Assembly are to determine the qualifications of their members, thus the judicial branch telling the legislative branch who its members may be violates the Separation of Powers Clause. Got it?
Never mind that the reason for separation of powers is not to allow each branch to stand totally autonomous and unanswerable to anyone, but to provide checks and balances when one branch runs amok.
But the court did allow that “declaratory relief could be sought by someone with a ‘legally protectible interest,’ such as a person seeking the executive branch position held by the legislator.”
A couple of years ago the libertarian-leaning think tank, Nevada Policy Research institute, did just that. It sued state Sen. Mo Denis on behalf of a person who wanted Denis’ $56,000-a-year job at the Public Utilities Commission. A judge declared the case moot when Denis resigned his PUC job.
NPRI has come back with a similar suit against state Sen. Heidi Gansert on behalf of a person who wants her public relations job at the University of Nevada, Reno — a job that yields $210,000 a year in pay and benefits.
This past week Carson City Judge James Russell ruled from the bench against the NPRI suit.
NPRI’s attorney, Joseph Becker said in a press release, “Essentially, we were told that in order to sue Senator Gansert for a constitutional violation, the Plaintiff must file similar suits against every other potential violator,” which is precisely what the Supreme Court said Heller could not do.
The judge has two weeks to put his ruling in writing, after which Becker said NPRI and its client will decide what to do next.
From what the judge said it court, Becker said it appeared Russell ignored the legal arguments but chose to embrace a non-binding opinion from the Legislative Counsel Bureau, which is the Legislature’s lawyers, who have a history of telling lawmakers what they want to hear.
“Apparently the non-binding LCB opinion held more weight with Judge Russell than the actual text of the Nevada constitution or the Nevada Supreme Court opinions, which interpreted that constitutional provision in Plaintiff’s favor,” Becker said.
That LCB opinion said “the separation-of-powers provision in the state constitution does not prohibit a member of the Legislature, during his term, from occupying a position of public employment in another department of state government, because a person in a position of public employment does not exercise any sovereign functions appertaining to another department of the state government.”
The word “sovereign” is not in the Constitution. It just magically appeared.
It is hard to win when the rules keep changing in the middle of the game.
In a 1967 case, the Nevada Supreme Court flatly stated, “The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”
That was 50 years ago. Yet, while lawyers and judges dither, the flouting of the concise words of the state Constitution continues, resulting in a farce and a canard.
Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at firstname.lastname@example.org. He also blogs at http://4thst8.wordpress.com/.