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Nevada Supreme Court’s ruling reaffirms its obligation to Nevadans

Michael Schaus
Michael Schaus
Criminal JusticeOpinion
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Nevada Supreme Court building in Carson City

Unless you’re one of the nearly dozen lawmakers who also currently work for a government agency, Thursday’s Nevada Supreme Court ruling was excellent news.

In a unanimous decision, the court granted standing to the Nevada Policy Research Institute in a separation-of-powers lawsuit against government employees who serve as state legislators. The decision didn’t address whether such dual service is unconstitutional, but it did allow the lawsuit to move forward in district court — paving the way for an eventual ruling on its merits.

It’s a decision that is long overdue. Efforts to bring the issue before the court have languished in judicial purgatory for more than a decade, as judges have repeatedly thrown out challenges based on the notion that plaintiffs lacked sufficient standing to bring forward such complaints in the first place. 

Previously, the court posited that potential plaintiffs must show they have been personally injured by a defendant lawmaker’s allegedly unconstitutional behavior. That, however, is an impossible standard to meet when the illegality in question violates our constitutional order rather than the specific civil liberties of any single individual. 

Thursday’s ruling changes things. And now, for the first time in decades, the courts will finally have an opportunity to consider the actual merits of the case. 

Nevada Policy argues such dual service is unconstitutional, pointing simply to the unambiguous language of Article 3, Section 1, of the state Constitution:

“The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others…”

Given the state Constitution’s clear language, it’s actually quite surprising how many alleged violations there have been throughout the decades from members of both political parties — including Senate Leader Nicole Cannizzaro (D-Las Vegas), who’s then-day-job as a Clark County prosecutor certainly seemed to meet the broad criteria of “any function” in another governmental branch. (Her dual service also raised serious concerns about the Senate’s refusal to entertain numerous criminal justice reforms in recent years.)

Indeed, the constitutional language is so clear that a 1955 attorney general opinion argued the provision even prohibited a public-school janitor from serving in the Legislature while employed by the school district. In 1967, the Nevada Supreme Court itself went so far as to say that permitting “even one seemingly harmless prohibited encroachment… could lead to very destructive results.”

In other words, it’s not just deputy district attorneys serving as lawmakers who are likely running afoul of the constitution’s prohibition on dual service. 

One egregious example from the early 2000s highlights the concerns that arise when any government agency has “one of their own” serving in Carson City. Wendell Williams was an assemblyman and a Las Vegas administrator who was seemingly employed by the city for no reason other than to act as a super-lobbyist (lawmaker) during legislative sessions. 

Throughout his employment with the city, he routinely missed work, racked up huge phone bills on the city’s dime and falsified time cards to boost his take-home pay… And yet, despite these transgressions, the city not only tolerated his poor work record but allegedly offered him a pay-raise in exchange for supporting certain pieces of legislation as a member of the Legislature. 

Eventually, after intense media scrutiny and public backlash, Williams was fired from his position in city government. However, the controversy surrounding his dual service illustrates the depth of potential corruption made possible by such disregard for the constitution’s basic separation of powers doctrine.

Beyond such alleged corruption, even the mere possibility of constitutional subterfuge is enough to deteriorate trust in the independence of our legislative branch. As the Oregon Supreme Court explained when it ruled that dual service violated their state’s separation of powers clause:

“Our concern is not with what has been done but rather with what might be done, directly or indirectly, if one person is permitted to serve two different departments at the same time. The constitutional prohibition is designed to avoid the opportunities for abuse arising out of such dual service, whether it exists or not.” 

Of course, there have always been plenty of government lawyers eager to protect their elected bosses and colleagues against judicial scrutiny. For example, Clark County Deputy District Attorney Alex Chen argued before the Nevada Supreme Court in defense of Melanie Scheible (D-Las Vegas) — a fellow government prosecutor who, like Cannizzaro, was also moonlighting as a state senator. Chen argued that only those who perform specific “sovereign” functions in other branches are prohibited by the constitution from serving in the Legislature. 

It’s an interesting argument, given that the word “any” isn’t well known as a synonym or alternative spelling for “sovereign.” 

Last week’s ruling represents more than the mere opportunity to finally have such arguments hashed out in court. The decision to grant standing to NPRI demonstrates that the court recognizes its obligation to ensure citizens have a mechanism by which they might hold government accountable. 

After all, the reason this particular issue has gone unresolved for so long isn’t because of some imagined ambiguity in the Constitution’s wording — it’s because legal standing has historically proven to be an insurmountable barrier for those seeking resolution from the judicial branch. This inability of individuals (or organizations) to bring forward any actionable lawsuit has served as a green light for a never-ending cavalcade of potential violations over the years.  

The court’s unanimous recognition that it not only has the ability, but also the obligation, to expand standing in this case is therefore a monumental win in and of itself. It demonstrates that technical legal hurdles cannot be used to perpetually shield constitutionally questionable behavior from eventual judicial review. 

And that is every bit as important as ultimately getting the court’s guidance on what is meant by the phrase “any functions.” 

Michael Schaus is a communications and branding consultant based in Las Vegas, Nevada, and founder of Schaus Creative LLC — an agency dedicated to helping organizations, businesses and activists tell their story and motivate change. He is the former communications director for Nevada Policy Research Institute and has more than a decade of experience in public affairs commentary as a columnist, political humorist, and radio talk show host. Follow him at SchausCreative.com or on Twitter at @schausmichael.

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