Though the Nevada Constitution clearly states that any person serving in one branch of government may not perform “any function” of another branch, the Legislature’s lawyers, the Legislative Counsel Bureau (LCB), in 2002 penned a non-binding opinion that stated a person may serve in the Legislature if they do not exercise “any sovereign functions” in another branch.
The definition of the adjective sovereign is: “possessing supreme or ultimate power,” thus the LCB adulteration of the Constitution emasculates the plain language of the Separation of Powers Clause.
The Nevada Supreme Court will have the opportunity to clear up this matter.
The Nevada Policy Research Institute’s (NPRI) legal arm, the Center for Justice and Constitutional Litigation (CJCL), this past week filed notice with the state high court that it is appealing the decision of a Carson City judge dismissing its lawsuit against a state senator for violating the Separation of Powers Clause.
“Defying the clear language of the Nevada constitution, Nevada Supreme Court precedent, and a 2004 Attorney General Advisory Opinion by then-attorney-general Governor Brian Sandoval, Judge (James) Russell relied upon a non-binding opinion from the Legislative Counsel Bureau in his ruling from the bench — but we believe the actual words of the state constitution should matter more,” declared CJCL Director Joseph Becker in an email press release.
In that 2004 opinion, Sandoval noted that in the 1957 Supreme Court case cited by the LCB as the basis for its opinion, the court never got to the point of ruling on the Separation of Powers Clause and dismissed it on other grounds.
CJCL sued state Sen. Heidi Gansert because she also is an employee of the University of Nevada, Reno.
“We believe the plain language of the constitution should take precedent over a non-binding LCB opinion, or the preferences of the ruling class,” commented Becker. “And we look forward to the appeals process finally giving further legal clarity on the issue.”
This fight has been going on for years.
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 10 lawmakers hold down state or local government jobs. As such, despite clear conflicts of interest, the lawmakers can vote themselves raises and hand out largesse to their employers — as Gansert did in this past session by voting for 2 percent raises for state employees and a capital expenditure budget that included more than $40 million for a new engineering building at UNR.
In 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy this skirting of the Constitution, but the court ruled that the Constitution gives lawmakers the power 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.
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.”
Under that guidance, the CJCL first 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’s lawyers came back with a similar suit against Gansert on behalf of a person who wants her public relations job at UNR — a job that yields $210,000 a year in pay and benefits.
Now that the district court judge has ruled that the Separation of Powers Clause is meaningless, it is back to the Supreme Court.
The court should heed the words of U.S. Supreme Court Justice Louis Brandeis in a dissenting opinion from 1926, “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”
Or they could turn to a 1967 Nevada Supreme Court opinion that flatly stated, “The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”
The words of the state Constitution should not be made meaningless by adding a word plucked out of thin air.
A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.