If you are like me, you probably enjoy those TV clips where people interviewed on the street get basic American civics and other facts wrong. Depending on how many interviews it takes to broadcast the juiciest ignorance, we do not acquit ourselves well. That said, thanks in large part to crime shows and movies, most Americans probably have some awareness of their right to remain silent, their right to an attorney even if they cannot afford one, and their right to their day in court before a jury of their peers. Great. But TV lawyering may also generate false confidence: most clashes with the state come with few of the constitutional rights we might expect, even when grave consequences are on the line. 

Generally, serious constitutional safeguards don’t kick in until serious crimes are in play. Such crimes typically involve possible jail sentences in excess of six months or the loss of fundamental rights. But we bump up against local, state, and federal governments all the time, and most of our official interactions with state authority have nothing to do with criminal law or criminal allegations, and therefore receive scant constitutional shelter. Chances are, if you find yourself at the state’s mercy or in the state’s crosshairs, your dispute is administrative or civil, not criminal. And absent real reform by Nevada’s lawmakers, the deck remains stacked against your average administrative defendant.

We have come to rely on the administrative state to regulate, investigate, and adjudicate government privileges, benefits, and entitlements. The local police department does not determine eligibility for things like unemployment. Nor does the local police detective probe whether your business is following code or whether you are complying with the terms of your occupational license. Thankfully, other public employees do those things, almost always without a firearm or the right to arrest. 

But just because these good public servants and the agencies they serve may not have the authority or the inclination to put you in jail does not mean they lack enormous power. Losing out on life-saving government benefits, or having your license, job, or business stripped away can be devastating, and the ramifications can last far longer than average time for average crime. An adverse administrative ruling may leave you ineligible for future benefits or future workplace licensing (and most jobs) for years to come. Despite the severity of possible punishments or consequences, though, the administrative process offers almost none of the safeguards the criminal process does.  

Criminal defendants may qualify for a free lawyer, a judge, a jury, and a real trial where the prosecution must meet the highest legal burden of proof. Administrative defendants do not. What they get instead looks almost nothing like the “day in court” many may assume is due. Generally, the investigation comes after guilt is suspected, and the trial comes after the initial verdict. There is no free lawyer, jury, or a robe-wearing judge. If the agency thinks you did something wrong, it will take a closer look. If it finds that you did something wrong, it will take action. You will then likely have a chance to argue before a hearing officer, an administrative law judge, a board, a commission, or all of them in turn. But you will carry most of the legal burden of proving them wrong. You may actually make it into a courtroom if you are persistent enough, but only an appeal, and only after exhausting all other administrative options. Left to fight for yourself, the administrative process can feel unfair and unwinnable. It often is. 

My gloomy tone notwithstanding, this is no rant about government regulation or regulators. We need the best of both. Many of the benefits of modern life are products of the modern administrative state. After years of working with and against hundreds of different regulators across multiple local, state, and federal agencies, I can count on one hand the number of civil servants who crossed the lines or had the wrong intentions. Individual regulators often go out of their way to help those who need extra attention, but they still must enforce the law, and they are regularly criticized for doing too little just as often as they are for doing too much. Injustices exist, but they reflect the systemic injustices all around us and not the alleged failings of individual public workers. 

I have represented countless clients before administrative bodies, and they are almost always individuals or small businesses. The administrative state’s primary targets are rarely the biggest and baddest of actors. And just like society as a whole, the process can be slanted against already-marginalized people and communities. The myriad of rules and expectations can be an ever-changing tangle that is difficult to fully understand, much less follow at all times and in all places. The challenges may seem insurmountable, especially for those suffering from language, financial, educational, or cultural barriers; or those who lack the time, the resources, the allies, the experience to mount a proper defense, or the wherewithal to survive the worse results. Even with all of its built-in protections, the criminal justice system still misfires at times. What can we expect will happen if those protections are removed like they are for administrative matters. 

Having seen the process up close and from all sides, I believe we need real reform. But how? How do we balance society’s insatiable need for regulation, with individual demands for justice, equity, and fairness? How do we make sure the gears of progress don’t grind up real people in the process? The courts? We already ask them to do too much, and case-by-case regulation is no answer. The governor? Political pressures aimed at the state’s chief executive may help, but the fixes are impermanent, and can appear arbitrary given the governor’s duty to faithfully execute the laws.  

Asking the governor to rectify broad wrongs, while also hoping judges prevent broad injustices leaves too many people in regulatory twilight. The solution to the problem lies elsewhere, with our elected lawmakers serving in the Legislature. In addition to their primary role in writing laws, Article 3, Section 1(2) of the Nevada Constitution gives Nevada lawmakers powers that even their federal peers lack. The Nevada Legislature has the explicit right and authority to question, challenge, wholly disapprove and nullify new agency regulations. They should use this authority to enact a review of all proposed regulations. 

As the authors of the Nevada Administrative Procedures Act, the Legislature also has the power to add greater procedural protections for individuals and small businesses. It is both unlikely and unfeasible that Nevada can provide the same level of protections for administrative defendants as it does to criminal defendants, but there is still plenty of room for improvement. Legislators can, for example, pass laws limiting the consequences for any one negative administrative action, so that a single regulatory mistake does not scar an individual for life, rendering them ineligible for a whole host of future jobs. They did something similar in 2017 with “ban the box” legislation that prevented certain irrelevant inquiries into one’s criminal record for specific jobs.  

No branch of Nevada’s government better reflects and represents the needs of all Nevadans than the Legislature. These 63 lawmakers must reassert their authority wherever it is supreme, and whenever it is necessary. Taking greater interest in and control of the administrative state is a project worthy of their attention. Without needed reforms, inequities and uncertainties will persist, leaving our regulatory framework ill-prepared for the Nevada we all hope to build. 

Daniel H. Stewart is a fifth-generation Nevadan and a partner with Hutchison & Steffen. He was Gov. Brian Sandoval’s general counsel and has represented various GOP elected officials and groups.