Here we go again.
A Clark County judge has ruled that government employees may also serve in the state Legislature, even though the Nevada Constitution clearly states in the Separation of Powers Clause: “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.”
The morning paper notes, “The ruling also points out that the Nevada Legislature has the power to block this kind of employment situation but has declined to do so.” Perhaps, that is because the Constitution has already prohibited it.
The judge made a distinction between a mere public employee and one who exercises executive power, though the Constitution clearly states “any functions.” She also found a difference between state government workers and local government workers, even though Nevada is a Dillon Rule state, meaning the state limits the power of local governments to those expressly granted by the Legislature. Local governments are basically subsidiaries of the state. Employees of local governments essentially are serving in the executive branch of state government, and should be barred from serving as a lawmaker under the Constitution.
The Nevada Policy Research Institute, the conservative think tank that filed the lawsuit seeking to enforce the Separation of Powers Clause, plans to take the case to the Nevada Supreme Court, which dithered on this topic in the past.
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 opinion quotes liberally from a series of articles by Arthur Vanderbilt, former chief justice of the Supreme Court of New Jersey:
“Individual freedom and the progress of civilization are attainable, but only if each of the three branches of government conforms to the constitutional principles of the separation of powers. This they will do only if the people so will. The problem in the first instance thus becomes one of popular education in the fundamental principles of free government. Among these principles there is none more significant today than the doctrine of the separation of powers.”
It also quotes Montesquieu:
“Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be the legislator: Were it joined to the executive power the judge might behave with all the violence of an oppressor.”
The court further quotes the Latin maxim “expressio unius est exclusio alterius,” which means the expression of one thing is the exclusion of another, and noted that it had ruled in an earlier case:
“It is true that the constitution does not expressly inhibit the power which the legislature has assumed to exercise, but an express inhibition is not necessary. The affirmation of a distinct policy upon any specific point in a state constitution implies the negation of any power in the legislature to establish a different policy. `Every positive direction contains an implication against anything contrary to it which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the law-making authority as strong as though a negative was expressed in each instance.’”
In 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy the ongoing 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?
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.”
Since then, the NPRI has filed lawsuits on behalf of people seeking the executive branch jobs of lawmakers, but to no avail.
The Nevada Separation of Powers Clause has been flouted for decades, as an assortment of bureaucrats have successfully won seats in the Legislature, including local prosecutors who enforce the laws they write.
The principle was embodied in the founding documents of this country.
James Madison wrote in Federalist Paper No. 47, “The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Thomas Jefferson wrote in “Notes on the State of Virginia” in 1784: “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. … An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
Let’s hope the state Supreme Court this time comes down on the side of the clear language of the Constitution and principles it embraces. To find otherwise is a farce and a canard.