Judge tosses separation of powers lawsuit challenging government-employed lawmakers over lack of standing

Riley Snyder
Riley Snyder
Criminal JusticeLegislature
The Legislature on Sunday, Aug. 2, 2020 during the third day of the 32nd Special Session in Carson City.

A legal challenge seeking to block members of the Legislature from being employed by executive branch agencies is being denied by a District Court judge, who says the libertarian-leaning nonprofit group that filed the lawsuit lacks standing to bring the case.

In a brief order issued Wednesday, Clark County District Court Judge Jim Crockett granted requests to dismiss the separation-of-powers lawsuit filed in July by the nonprofit Nevada Policy Research Institute.

Though the case was scheduled for a hearing on Thursday, Crockett wrote in his order that it would be unnecessary as the organization failed to show it had standing to bring the case forward.

“It is an organization, rather than a particularly-aggrieved individual, harmed by any alleged dual employment,” Crockett wrote in a brief order. “It is quite clear that Nevada Policy Research Institute does not allege any particularized harm beyond that of any ordinary taxpayer and that is simply not enough to give standing to Nevada Policy Research Institute to bring this suit.”

It’s another legal setback for NPRI, which has filed or been involved in at least two other lawsuits seeking legal determination as to whether lower-level government employees can also serve in the state’s part-time Legislature. The group sued Republican Sen. Heidi Gansert in 2017 on behalf of a plaintiff interested in her job at UNR and Democratic state Sen. Mo Denis in 2011 over his IT job at the state Public Utilities Commission.

A spokesperson for NPRI said the group planned to appeal the decision.

“As the Nevada Supreme Court has already expressed, the Separation of Powers doctrine is ‘probably the most important single principle of government’ safeguarding Nevadans’ liberties,” spokesman Robert Fellner said in an email. “For this reason, Nevada Policy believes the judiciary must allow any citizen the opportunity to challenge such blatantly unconstitutional behavior.”

Nevada’s Constitution includes a provision requiring members of the legislative, executive and judicial branches of government to remain separate, but no state court has ever clearly ruled whether that separation-of-powers doctrine applies to all government employees, such as teachers or local government workers, or only those that wield sizable executive power, such as the governor or an elected district attorney.

But Crockett declined to get into those constitutional issues in his order, saying that NPRI failed to make any “persuasive arguments regarding standing,” or a legal reason why the group has grounds to bring the lawsuit forward. He also said the organization “blows hot and cold” on whether or not it was bringing legal charges against lawmakers in their individual capacity or in their position as state lawmakers.

“Historically, Nevada Policy Research Institute has demonstrated that it has been able to enlist individuals who might provide a more colorable claim of particularized harm but have simply opted not to do so in this case to enhance the possibility of finding that counsel represents someone with actual standing,” Crockett wrote in the order.

This is the second legal decision related to the separation-of-powers doctrine filed this month; Clark County District Court Judge Richard Scotti last week overturned a drunken-driving conviction on the grounds that the prosecutor in the case, state Sen. Melanie Scheible, should not be able to enforce powers that fall within the state’s executive branch while also employed as a legislator.


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