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OPINION: The Constitution’s clear; one branch of government at a time

Michael Schaus
Michael Schaus
Opinion
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Asking someone to define the word “any” feels like something Bill Clinton would do during a deposition. 

And yet, somehow, that’s basically what is being asked of the Nevada Supreme Court in a lawsuit against four Democratic lawmakers who also hold jobs in the public sector — a lawsuit brought by my former employer, the Nevada Policy Research Institute (NPRI). 

Last week, the Supreme Court heard oral arguments in the case, with lawyers for both sides arguing over how the state Constitution’s separation of powers clause should be interpreted.

Article 3 of the Nevada Constitution states simply, “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, except in the cases expressly directed or permitted in this constitution.”

During oral arguments, the Legislative Counsel Bureau (LCB), which is representing the lawmakers named in the lawsuit, insisted the term “any functions” should be interpreted to mean any “sovereign” function in one of the three branches of government. It’s an argument that has long been a favorite among those defending the idea of dual service in government — and NPRI isn’t alone in taking issue with such an interpretation. 

The plain language of the provision shouldn’t allow much room for nuance — at least not on the topic of what type of functions determine a violation. After all, “any” in ordinary English (as in, “any function”) is a pretty straightforward word selection. In fact, the Nevada Supreme Court has already settled what, exactly, the word means in a legal context — and it certainly isn’t synonymous with “some,” “specific” or “sovereign.” 

In 2019, the Democratic legislature passed a pair of bills that reversed scheduled tax reductions without a two-thirds majority — a requirement for any bill “which creates, generates, or increases any public revenue in any form.” When the Supreme Court ultimately slapped down the unconstitutional revenue increase two years later, it went so far as to provide the legal definition of the word “any” in its ruling — because plain language apparently baffles politicians and lawyers when it interferes with their policy ambitions.   

Well, keeping that definition handy could once again prove useful to the justices, considering that the legislative lawyers representing the defendants in the case are once again asking us to forget that words have specific meanings.  

As The Nevada Independent reported last week, LCB’s Kevin Powers argued that because a public school teacher does not have sovereign power in their role, for example, the functions they exercise shouldn’t bar them from serving in the Legislature. 

However, if the prohibition on dual service was only meant to apply in certain circumstances, one has to wonder why the word “any” was used by the Constitution’s authors in the first place rather than the LCB’s preferred qualifier, “sovereign.”   

The mere fact that defenders of dual service have to insert such qualifiers is an indication that the original language is far more sweeping when read plainly. Indeed, plenty of legal minds have concluded that, as one might expect, “any function” actually means exactly what it implies: No exceptions. 

1955 attorney general opinion, for example, suggested that even a public school janitor would be prohibited from serving in the Legislature due to Article 3 of the state’s Constitution. And in 1967, the Nevada Supreme Court  went so far as to say that permitting “even one seemingly harmless prohibited encroachment … could lead to very destructive results.”

Such sweeping interpretations of the state’s separation of powers doctrine makes a lot of sense, given how critical it is that each branch of government remains independent from the others. Such separation between the branches is what allows the “checks and balances” in our government to operate effectively — preserving the very democratic foundations upon which our system of government is built. 

Article 3 of the Nevada Constitution was crafted specifically to ensure that separation remains preserved. 

The saga and scandal of Wendell Williams — an assemblyman and Las Vegas administrator who allegedly leveraged his position as a lawmaker to receive pay raises from the city — is one particularly egregious example of what happens when those protections are eroded. However, even seemingly innocuous instances of dual service injure the independence of each branch. 

For example, when Republican Heidi Seevers Gansert won her Senate seat in 2015, it was no secret that her public-sector employer was poised to benefit greatly from her presence in the Legislature.

And while many people might celebrate the idea of certain government agencies receiving a “windfall” from having one of their own as a lawmaker, it nonetheless illustrates the exact sort of incestuous conflict against which the state’s separation of powers provision is supposed to guard. 

As the court has rightly pointed out in previous instances, the independence of each branch of government is one of the most fundamental and important concepts in our democratic system. It must be inviolable if government is expected to represent the interests of the public, rather than the interests of the state. As such, it’s unsurprising the Constitution’s authors didn’t see fit to include qualifying language in the separation of powers clause — instead opting to use the inherently sweeping phrase “any functions.”   

If the current language of Article 3 isn’t sufficient to affect a total prohibition on dual service, one has to wonder what language would be? After all, the meaning of the word “any” hasn’t changed since the last time the court had to look it up in a legal dictionary.   

Michael Schaus is a communications and branding expert 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 has more than a decade of experience in public affairs commentary, having worked as a news director, columnist, political humorist, and most recently as the director of communications for a public policy think tank. Follow him at SchausCreative.com or on Twitter at @schausmichael.

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