Separation of powers: Think tank finally pulls the trigger on defiance of Nevada Constitution

When I interviewed Joseph Becker, the newly installed head of the Center for Justice and Constitutional Litigation at the Nevada Policy Research Institute, nearly a year ago, he mentioned that one of the possible objectives of the Institute was to find someone “with standing” to be the plaintiff in litigation attacking the wholesale ignoring of the separation of powers clause in the Nevada Constitution.

This week the Center filed that lawsuit on behalf of an unemployed computer technician.

Joseph Becker

The libertarian-leaning center at the time of its launch listed potential areas for litigation as: Freedom of speech, assembly and religion, as well as gun ownership, property rights, privacy, limited government and separation of powers.

Becker explained a year ago, and I quoted him in a column,  “The Ninth and Tenth amendments are very important to us — separation of powers, leaving to the states what’s the order of the states and even separation of power, making sure the legislative, executive and judicial branch maintain their separate and proper roles.”

This week’s lawsuit argues that unemployed computer tech William Pujonis is harmed by the fact state Sen. Mo Denis unconstitutionally serves in the legislative branch while simultaneously performing a function in the executive branch, specifically computer tech at the Public Utilities Commission. Pujonis is thus blocked from seeking Denis’ job, which he holds in violation of the Constitution, which states:

“The powers of the government of the state of Nevada shall be divided into three separate departments, the Legislature, 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.”

As Ed Vogel’s Review-Journal story points out this is not the first time this has been argued. In 2004 the state Supreme Court, rejected a similar suit, saying the state Constitution lets the Legislature set qualifications of members.

That’s why Becker and the Center went looking for an aggrieved party who would be able to show that failing to follow the letter of the Constitution denied the plaintiff due process under the law.

As Vin Suprynowicz explained in his R-J column several months ago, the separation of powers clause was strictly adhered to until about 1964. Even school janitors were not allowed to sit in the Legislature.

This was chipped away by a couple of attorney general rulings until in 1971  Attorney General Bob List opened the flood gates. List held that a person could “exercise powers” as a legislator so long as he didn’t “exercise powers” in one of the other branches. Never mind that the constitutional criteria is “function.”

Vin also related, “In 2004, Attorney General Brian Sandoval — now our governor — issued an opinion holding that state workers should not be allowed to sit in Carson City. But it has never been tested in the courts and is widely ignored.”

In a press release, Becker said, “Allowing one person to exercise power in two branches of government leads to numerous conflicts of interests and invites corruption. It also destroys the checks and balances that were built into Nevada’s government to protect citizens from power-hungry politicians.”

Well, you might ask, in our democratic form of government shouldn’t the voters be able to elect whoever they wish to be their representative? It was no secret which candidates also worked for other branches of government. (Becker estimates that close to 20 percent of the Legislature is in violation of the clause.)

The same argument is made against term limits.

But people forget this country and state were founded not as democracies but as republics, with power being broadly distributed lest one person or group attain too much power. And the Founders were just as leery of a mobocracy of the majority as they were of the monarchy. That’s why the U.S. Constitution limits the powers of the majority and demands supermajorities to change those constraints.

The Founders said there could be no bill of attainder, no ex post facto laws, no denial of habeas corpus. Property may not be taken by the majority without just compensation. The majority may not take away free speech or religion or guns or liberty.

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.”

17 comments on “Separation of powers: Think tank finally pulls the trigger on defiance of Nevada Constitution

  1. Everyone knows that the rulers who make the rules DON’T have to follow the rules they make, just us unwashed masses do! And God help you if you don’t!

  2. That’s why Founders tried futilely to restrain human nature, Bruce.


  3. Steve says:

    Listening to the TV news last night one would have thought this was aimed at all employees. Public or private, when in fact its aimed enforcing the separation of powers once again.

    It would seem to have a byproduct of EEOC as well. Currently a legislator would have a much better chance of getting that IT job. Probably a 100% better chance in fact.

  4. That is one of the points, Steve. In fact, local government considers having a legislator “added value.”


  5. James Lamb says:

    Can someone answer the question- Why would the State Supreme Court rule that the legislature can set qualifications without ruling whether the qualifications were constitutional? That would be the same as saying that since the state constitution lets the legislature make laws, every law is then constitutional. And why do we have a Supreme Court whose job is to rule on the constitutionality of state laws? Why do I feel this is a can of worms which the Supreme Court will try to find any small piece of hair so as not to rule as the constitution intended? This sounds similar to the argument that Clark County was not actually part of the Sate of Nevada and the troublesome issue was then quitely “fixed” sometime in the early 80’s.

  6. The cities and counties in Nevada exist at the behest and good will of the legislature, James, as you apparently are well-versed enough to understand, but a judge …?


  7. Athos says:

    Finally! Sherm had a blog discussing Fred Siegel’s article on the destructive power of government unions. When you have government union workers making the laws as legislators, bankruptcy awaits.

    Good luck and God bless, Mr. Becker.

  8. Athos says:

    Plus, my parents generation knew this was just flat out wrong. It’s my generation (baby boomers) with our fixation on ourselves, that brought about this “if it’s good for me, it’s good for the country” mentality.

  9. The New Deal started it.

    Sent from my iPhone

  10. Steve says:

    James Lamb, I am not versed in law to that extent. I do hope that the lawyers at CJCL backed by NPRI have truly answered every question before bringing this case.

    I do know enough to understand if there is a question I do not have the right answer for, I will lose ground before a judge.

    Even in a silly situation presented by those arbitration shows masquerading as court TV shows this is still true. You need to be ready to bring a case.

    Lets all wish them the best and keep alive the idea they are fully prepared to face the State Supreme Court.

    Lets also hope the answer is NOT a full time legislature.

    I believe the best answer is to match the current pay of private employees while they serve in our legislature. There would be one additional thing required in this, we would have to force employers to keep the legislators’ job open and available so they can return to full employment during the off times.

    Interim committees would have to be a part of the responsibility of the legislator and accepted as a requirement for being elected and having that private job protected.

    But a full time legislature is the evil I hope we do not see come from this.

  11. Athos says:

    But even a full time legislature is preferable to people employed in the Executive Branch, making laws in the Legislature, that directly impacts them favorably.

    Example: Wisconsin last summer.

  12. Why do you think public employee pay and benefits have grow so rapidly?


  13. Steve says:

    I want the legislators to have to come home to live and work under the laws they pass. Next door to the people they represent.

  14. Instead of the Ritz Carlton?

    Sent from my iPhone

  15. Athos says:

    But Steve, that hasn’t been working so well, has it? On a federal level, it would be fitting for congressmen to fall under SS, and medicare, instead of their golden “defined benefit” pensions.

    They can’t even live under the “insider trading” laws that the rest of us have!

    I’m all for term limits, and separation of powers.

  16. Steve says:

    It stopped working when public employees were allowed to run for and hold elected office while keeping their public job. It worked great right up to that change. We need to remember the past and do today what worked then.

    Good thing is a full time legislature would take an amendment to the state constitution. Bad thing is the legislators we have now would love to be full timers.

    Tom, yes.

  17. […] why that NPRI suit over executive branch employees sitting the state Legislature is so […]

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