Nevada’s Constitution is good law but bad code
Early in my professional career, I provided information technology support for law practices. Naturally, while fixing lawyers’ laptops, I would occasionally try to talk shop with them. Since our work seemed superficially similar to my amateur eyes — like IT professionals, lawyers seemed to read reams of documentation, synthesize it, then attempt to use the resulting information to “troubleshoot” a client’s problem — I was understandably curious about how transferable our mutual skill sets were. Would a lawyer make a good IT professional? Would an IT professional potentially make a good lawyer?
If you’re a lawyer or IT professional reading this column, I’ll give you a minute to stop laughing. Go ahead, take your time.
What I didn’t understand then but better understand now is my chosen profession specializes in control — controlling unthinking, unfeeling computers, each one running code written in mathematically formalized grammars that ultimately compiles into 1s and 0s. If I don’t like what a particular computer is doing, I can give it different code to execute instead.
Code controls computers. Law, on the other hand, doesn’t control — it governs.
To understand the difference, imagine for a moment if I offered to solve the legal problem of people driving above the speed limit on Nevada’s roadways using the analytical skills I’ve learned in my professional career. The obvious place to start troubleshooting is, well, why are people able to drive above the speed limit in the first place? Simply apply a technical control — say, GPS monitors that automatically restrict every car’s speed to the speed limit of the road they’re driving on — then be done with it. It would be a win-win — no more speeding and no more speeding tickets.
My solution, unfortunately, highlights a common mistake novices among my profession frequently make — it confuses the control we can impose against unthinking machines with control we can impose against the people using those machines. People, unlike computers, are under no obligation to passively cooperate with their “programmers.”
For example, who would voluntarily accept GPS monitors with this functionality in their car? People aren’t exactly lining up around the block to install car monitoring software or hardware to save money on car insurance. Even if we could legally compel every motorist to install these devices during their next annual registration renewal, what’s to stop anyone from reprogramming the device after installation (there’s already a large aftermarket providing exactly this service for modern cars, by the way)? What would happen to rural police department budgets once they lost access to regular speeding ticket revenue and who would be responsible for making up the difference?
Thus a fundamental difference between working in IT and working in law is illustrated. Law may control and compel at times, but it does so with a skeptical eye towards the people exercising the control and the people being compelled — well, a more skeptical eye, anyway, than one used by an IT professional controlling a computer. Someone accustomed to working with machines might look at a recently highlighted negative externality — say, indoor emissions from gas stoves — and naively assume they can simply patch the error away by ending production and sale of gas stoves.
Lawmakers, lawyers and judges, however, must contend with the existing context created by past and present human actions — namely, many people prefer gas stoves over non-induction electric ranges, many people can’t afford higher-priced induction ranges, and there are thousands of people who work for natural gas utility companies. Just ask Nevada’s lawmakers, who learned that lesson themselves the hard way a couple of years ago.
Even so, there exists a cottage industry which likes to pretend laws, especially when they are inscribed within a constitution, are code — code which can be invoked to imposed direct, immediate control over the system of government we live in, regardless of the wills of the people being governed or the wills of the people doing the governing.
Take, for instance, Nevada Policy Research Institute’s lawsuit alleging it’s a violation of the Nevada Constitution for public employees to serve in the Legislature. Textually, NPRI’s interpretation was technically correct — Article 3 of our Constitution was written to prohibit those who serve in one of the branches of our government from serving in another branch. Ostensibly, this article was written to prevent the potential for conflicts of interest and to ensure powers between each of the branches of our state government remain separate. The wisdom of that original constitutional text was recently demonstrated when a lower court overturned a pair of DUI convictions because Sen. Melanie Scheible (D-Las Vegas) was helping write and pass the very laws she was prosecuting people for when she went back to work as a Clark County deputy district attorney after the last legislative session was completed.
Legally and politically, however, there was absolutely no way the judicial branch of our government — the elected judicial branch, at that — was going to kick a sixth of the Legislature (11 of Nevada’s 63 legislators are public employees) out of office, especially right before the start of a regularly scheduled legislative session. Doing so would have created procedural chaos, replacing several elected officials with hastily chosen appointees selected by partisan party insiders. It would also invalidate the will of the voters who, in many instances, selected their preferred representatives because — not despite — they were public employees. Many voters, like myself, elected teachers, such as my assemblywoman, to public office because they thought teachers might have some insight into how public policy could be leveraged to somehow improve Nevada’s long-lackadaisical educational outcomes.
It would also have likely led some incumbent state Supreme Court justices to experience a contested election — and we certainly can’t have that.
To be clear, this was a trap Nevada’s judicial branch created for itself by adopting and preserving an overly restrictive standard for standing — over who’s allowed to bring suits against whom and under which circumstances — for several decades. Since it was almost impossible to demonstrate that any single person was directly harmed by routine violations of Article 3 of our Constitution, the judicial branch lamely punted enforcement of Nevada’s constitutional provisions back to the Legislature.
Unsurprisingly, given a choice between honoring the will of the voters and honoring the will of some scruffy miners who hastily plagiarized California’s constitution over a century ago, the Legislature shrugged and seated any duly elected member who could make the trip to Carson City — given what legislators are paid, it’s frankly a miracle anyone shows up at all.
The scope of this trap, however, doesn’t just extend to public officials serving in the legislature — it also extends to former legislators becoming public officials. After all, if public officials can get elected into the Legislature, why shouldn’t former legislators be permitted to become public officials? That’s the question former Republican Sen. James Settelmeyer’s appointment as director of the Department of Conservation and National Resources, along with former Democratic Assemblywoman Teresa Benitez-Thompson’s appointment as chief of staff for the attorney general, inadvertently raised this week.
Just like Article 3, the constitutional language in Article 4, Section 8 is plain — legislators must wait a year before working for the government in positions they either statutorily created or in positions they granted a pay raise to while they served in office. As both former legislators served in the Legislature when the last pay raise for state employees was passed in 2021, and as both of their terms didn’t end until 2022, they presumably must wait at least a year before they can work for another branch of the state government — right?
If we interpret Article 4, Section 8 as code, as a binary logical function which could only be interpreted as true or false, both former legislators are indeed ineligible to work in public employment. There are two conditionals — the office is created; emoluments have been increased during their term — separated by the ‘or’ operator. Logically, when an ‘or’ operator is used, if either conditional evaluates as true, then the whole statement evaluates as true (“most dogs have four legs or three ears,” for example, is logically true because most dogs do indeed have four legs). Since emoluments — a fancy Latin legal word which basically means “compensation” — were raised during their last term, the whole of Article 4, Section 8 returns as true and we programmatically remove a couple of current state employees from the payroll system. Problem solved.
If we interpret Article 4, Section 8 as governing law, however, we quickly run into some complications. Yes, pay was increased for the positions currently held by Benitez-Thompson and Settelmeyer, but the legislation authorizing those pay increases applied to all state employees, not just the positions held by the two former legislators. Additionally, former Sen. Settelmeyer voted against the bill authorizing the raise he now enjoys. Because Article 4, Section 8 exists to serve a purpose — not to be a binary logic statement evaluated in isolation, but to instead prevent legislators from engaging in corruption and graft — Nevada’s judicial branch, should it ever accept someone’s standing to contest the issue in the first place, would likely evaluate the legal merits of the challenge by weighing whether each former legislator’s appointment would potentially increase the possibility, or the perception of the possibility, for corruption.
Would the public good be served by taking a hard line on their appointments, thus sending a message to legislators to seek employment in the private sector once they’re done serving in the Legislature? Would that hard line discourage legislators from approving future pay raises for state employees, including Supreme Court justices and their staff? Would the political costs — annoying both the governor and the attorney general, who each appointed former elected officials as members of their staff — be worth the public gains? Or would a narrower interpretation, one which defends the ability to keep legislators out of positions they created (sorry, Heidi Swank) but otherwise merely discourages legislators from approving pay raises for specific public positions they have their eyes on for after they’re termed out better serve the public interest?
I don’t know the answer. One aspect I love about working in information technology is I don’t have to.
To be clear, I’m not suggesting that constitutional limitations are meaningless, nor am I suggesting that hard lines shouldn’t be drawn. The aforementioned provisions in our Constitution exist for good reason and it’s about time they’re getting meaningfully enforced, even if incompletely. If we want a narrower interpretation of those clauses, we should strongly encourage the Legislature — perhaps through the use of a parenthetical in an overly verbose opinion column published on a Sunday — to write and pass appropriate amendments to those clauses.
Hard lines, however, are much easier to draw in advance — say, decades ago when public employees were first elected into the Legislature — than they are after a substantial minority of sitting legislators have been elected by voters specifically to advance their personal interests. They’re also easier to draw when the purpose of the line — say, keeping legislators from creating taxpayer-funded jobs for themselves to occupy when they leave the Legislature — are obvious.
But when lines are already gray and smeared, there are costs to imposing legal and constitutional clarity where there was none previously. Just ask the person passing you who’s driving over the speed limit.
David Colborne ran for office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Twitter @DavidColborne, or email him at [email protected].