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Nevada Supreme Court has an obligation to finally tackle ‘separation of powers’ issue

Michael Schaus
Michael Schaus
Opinion
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The front of the Nevada Supreme Court Building

Before the high court decides if it is unconstitutional for government employees to serve in the Legislature, it has to decide if there’s actually a legal path for Nevadans to challenge such behavior in the first place. 

The Nevada Constitution plainly states that “no persons charged with the exercise of powers properly belonging to one [branch of government] shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this Constitution.” And yet, for decades, numerous employees of executive branch agencies and subdivisions have done precisely that by serving as lawmakers in the Legislature. 

Last week, the Nevada Supreme Court heard oral arguments in a case that seeks clarity on this very issue. However, the arguments that were actually made before the court in NPRI vs, Cannizzaro et al., weren’t about the meaning of the constitutional provision, or the importance of what the court has described as “the most important single principle” of our constitutional structure. Instead, the court was asked to determine whether the plaintiff in the case even had “standing” to even bring the lawsuit forward. 

In Nevada, the court’s interpretation of standing has historically been so narrow as to make it absurdly difficult to challenge certain constitutional abuses. For example, when then-Secretary of State Dean Heller brought forward a similar lawsuit in 2004, his case was dismissed for a variety of reasons—one of which was standing. 

In that case, the court ruled that merely demonstrating a constitutional violation wasn’t sufficient—a plaintiff must, instead, demonstrate a personal injury or harm arising from the alleged violation. Of course, that’s a tall order for a violation that, by its very nature, is a generalized erosion of our constitutional order rather than a specific assault on an individual. 

The impracticality of such standing requirements is likely why the court posited a possible roadmap for bringing forward a future case on this specific issue: Find a plaintiff who wanted the public-sector job currently occupied by a dual-serving lawmaker and sue the legislator directly. 

Over the past decade, however, it has become abundantly clear that even when that roadmap is followed, courts will find reason to dismiss the case before the actual constitutional questions are considered. The first time Nevada Policy Research Institute (NPRI) followed the framework put forward in the Heller decision and found a plaintiff, the case was dismissed after the lawmaker left his public-sector job—as if his resignation erased the need for the court’s guidance on the underlying constitutional question. 

The next case brought forward by NPRI also was dismissed — in part, because the court concluded that Rule 19(b) of the Nevada Rules of Civil Procedure requires a lawsuit brought against one member of a broader class to name all members of the class… In other words, NPRI would have been required to find individual plaintiffs for each of the roughly dozen instances where a lawmaker worked in a public-sector job. 

As it turns out, even when following the guidance given by the Supreme Court, it has proven nearly impossible to advance the underlying constitutional questions such cases were designed to resolve. 

The difficulty lies in the court’s insistence that such a constitutional question be approached as if it was merely some sort of human resources squabble. In truth, the central issue in these lawsuits hasn’t been that some highly qualified individuals were denied jobs in government — it’s that our constitutional structure is being ignored by the lawmakers and public servants charged with protecting it. 

To demand that such basic constitutional questions be draped in legalistic theatrics—and that plaintiffs be well-qualified individuals ostensibly out of work because one specific position at a public employer is not considering new applicants—makes a mockery of the very system designed to provide resolution. 

Moreover, under the court’s traditional interpretation of standing, the full scope of Nevada’s separation of powers doctrine will likely never be satisfactorily addressed. After all, a little shuffling around in a government agency’s administrative office could, in theory, derail any attempted future litigation. 

If a qualified plaintiff tried to sue Nicole Cannizzaro over her position as a deputy district attorney, for example, the DA’s office might be able to get the lawsuit dismissed by merely offering the plaintiff an alternative prosecutorial position. Given the plethora of positions open in the state’s public school system, it seems unlikely that any applicant—no matter how well qualified—would be able to claim suffering “a personal harm” because of some lawmaker’s continued employment in a school district. 

To put it simply: The personal harm of someone (allegedly) missing out on an employment opportunity with a public agency isn’t the question the court needs to solve—nor is it an argument that could be made without some suspension of disbelief. So, why should it be central to enforcing a plainly written constitutional provision regarding the structure of our government? 

No wonder, given this framework, the court has never actually had an opportunity to resolve the underlying issue regarding the separation of powers provision. For decades, the judicial application of standing effectively narrowed the pool of potential plaintiffs ad absurdum—making it virtually impossible for anyone to advance a judicially permissible case.  

However, in 2016, something important changed in Nevada jurisprudence: The Nevada Supreme Court expanded its interpretation of standing. The “Schwartz exception,” as it became known, was carved out by the high court precisely because certain legal questions merit resolution on behalf of the public at large—not merely on behalf of one individual claiming exclusive and unique injury. 

While this exception remains narrow, the concept reflects the thinking behind much broader exceptions to traditional standing requirements that have been adopted by a plethora of other states—including Colorado, Oregon, Indiana, Montana, Louisiana and New Mexico. Such expanded versions of the Schwartz exception, known collectively as versions of “taxpayer standing,” have been a routine part of jurisprudence in numerous states—giving regular taxpayers a pathway to challenge unconstitutional government actions without inventing ancillary reasons for bringing forward a lawsuit. 

There’s nothing stopping the Nevada Supreme Court from adopting similar exceptions for such questions of public importance. Should the high court instead decide not to grant standing in NPRI vs. Cannizzaro—either under the Schwartz exception or through an expansion of it—it will have effectively concluded that clinging to a narrow procedural precedent is more important than providing citizens with a usable mechanism for resolving constitutional conflicts. 

Such a decision would condemn the underlying issues of this case to a perpetual legal purgatory—hardly a fitting outcome for an issue the high court itself has described as one of the most crucial components of our constitutional order.

Michael Schaus began his professional career in policy and public commentary over a decade ago, working as a columnist, a political humorist, a radio talk show host and, most recently, as the communications director for Nevada Policy Research Institute. In 2021, Michael founded Schaus Creative LLC, a creative branding and design agency dedicated to helping organizations, businesses and activists tell their story and motivate change. Follow him at SchausCreative.com or on Twitter at @schausmichael.

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