By Lorne Malkiewich
For 30 years I had the honor of serving this state, working for the finest service agency I have ever known, the Nevada Legislative Counsel Bureau (known throughout the state simply as the “LCB”). This central, nonpartisan agency provides comprehensive service to the Legislature, from review of the budget and revenue (Fiscal Analysis Division), comprehensive research and staffing of committees other than budget and revenue committees (Research Division), performance audits of executive branch agencies to ensure that the legislation adopted in 120 days is carried out in the other 610 (or 611) days of the biennium (Audit Division), managing practical operation of the Legislature, including building and grounds maintenance, janitorial services, Legislative Police, accounting, information technology services, and communications (Administrative Division), and, finally, drafting all bills and amendments, providing legal advice to the legislative branch of government, and representing the Legislature and its interests in court (Legal Division).
This model has allowed the LCB to provide exceptional service at a comparatively small cost – many other states provide staffing to each party along with a central staff, or provide extensive staffing for individual committees and legislative leadership. In one of the four remaining states with biennial sessions (Texas, North Dakota, and Montana are the others), it is important for legislative staffing to be provided as economically as possible. This model has not only done so, it has resulted in the provision of unsurpassed and unbiased service. It distresses me greatly to see this model threatened by a legal opinion concerning the requirement of a 2/3 vote to increase revenue and the litigation that ensued when the Legislature acted in reliance upon that opinion.
Orrin Johnson recently wrote an opinion for The Nevada Independent expressing his view that it was wrong for the LCB to be asked to “write a very partisan legal opinion.” He also criticizes the underlying legal opinion, and opines that the LCB should not defend the statute in court. I disagree on all three counts.
First, the idea that the LCB should not be asked to provide legal advice if the opinion would force LCB into a partisan battle is an exception that swallows the rule. In our highly partisan political environment, virtually every major legal issue splits along partisan lines. Mr. Johnson’s admonition would prevent the Legislature from receiving unbiased legal advice on issues such as abortion, the Second Amendment, redistricting, and myriad others. While legislators are free to disagree with the legal advice (and often do), it is preferable for the 63 members of the Legislature to have access to unbiased legal advice than to receive advice dictated by the political party of the person writing the opinion. As for the allegation of a conflict, Professor Jeffrey Stempel of the Boyd School of Law indicated that he doesn’t think it’s “even a cosmetic violation of conflict provisions” (quoted in a balanced review of the issue by Steve Sebelius of the Las Vegas Review-Journal).
Mr. Johnson clearly disagrees with the underlying legal opinion (“[t]his argument is absurd” and “regardless of how you feel about the merits of their creative constitutional scholarship”), and while he praises the legislative staff, he implies that the opinion was written merely to satisfy the majority party (“LCB issued the opinion desired by the majority”). Contrary to Mr. Johnson’s opinion, the LCB’s legal opinion is based not upon a desire to please the majority, but rather a review of relevant precedent. The LCB’s legal opinion cites analogous cases from Oklahoma (decided in 2017), Oregon (decided in 2015), and Louisiana (decided in 2017) and rules of statutory construction that have remained consistent for centuries (in brief, legislative enactments are generally given deference by the courts). The Nevada Supreme Court may disagree with colleagues in Oklahoma, Oregon, and Louisiana, but in a matter of first impression, is it “absurd” to come to the same conclusion that those courts did? Notably, in the eight months since the LCB opinion was issued, no contrary precedent has been identified.
Finally, Judge Russell’s opinion did not sideline the LCB. He allowed the Legal Division to continue to defend the statute, as it does with any law enacted by the Legislature (particularly important where the Legislature relied upon the advice of the LCB in enacting the legislation). Judge Russell simply stopped the LCB from representing the secretary of the Senate (sued for signing the legislation?) and the Senate majority leader (I won’t even speculate as to a plausible reason for naming this officer – the lieutenant governor, the presiding officer of the Senate, signs enacted legislation, not the majority leader). When a legislative officer is sued in his or her official capacity for actions in connection with enacted legislation, the defense is incidental to the defense of the statute itself. It would set a horrible precedent to allow a litigant to prevent the LCB (or a city attorney or district attorney) from defending the Legislature (or a city or county) merely by including a representative of one major party as a plaintiff and a representative of the other major party as a defendant.
I hope the Nevada Supreme Court will recognize that government lawyers need to provide advice on controversial issues, and that doing so does not create a legal conflict with representatives who disagree with that advice. I hope the members of the Legislature will continue to recognize that unbiased, nonpartisan, professional staff provide a benefit to them and the state as a whole. If not, I fear that a state treasure, the finest service agency in Nevada, will never be the same, and we as Nevadans will be the ultimate losers.
Lorne Malkiewich was a Legislative Counsel Bureau employee (1981-2012), served as Legislative Counsel (1987-1993) and was LCB Director (1984-2012). He was a registered lobbyist and employee of R&R Partners from 2013-2017. He is now retired.