Indy Explains: Why the lieutenant governor can argue state Senate recall case without ethical conflicts

Riley Snyder
Riley Snyder
Indy ExplainersLegislature

The politically charged effort to recall two Democratic state senators has created an unusual sight — the presence of GOP Lt. Gov. Mark Hutchison as the head legal counsel for the groups backing the recalls.

Although it seems out of the ordinary, there’s nothing in Nevada ethics law or the rules around the elected office that would prohibit Hutchison — the Republican lieutenant governor and a partner at the prominent Las Vegas law firm of Hutchison & Steffen — from arguing the recall case in court — which he did just last week.

Lt. Gov. Mark Hutchison speaks during court proceedings regarding the recall efforts focused on state Sens. Nicole Cannizzaro and Joyce Woodhouse inside the Las Vegas Regional Justice Center on Wednesday, Feb. 7, 2018. Daniel Clark/The Nevada Independent

Dan Stewart, a partner at Hutchison’s firm and one of the attorneys who argued the recall case in court last week, said that the lieutenant governor has continued arguing hundreds of cases over his time in office, and that the recall case presented no ethical landmines or conflicts.

“We just never even considered this was close to the universe of potential problems,” Stewart said.

The recall efforts, which were launched late last year and have largely been funded by the Republican State Leadership Committee, initially targeted three state senators — Democrats Nicole Cannizzaro and Joyce Woodhouse, and nonpartisan Patricia Farley (who caucused with the Democrats). The recall groups submitted enough signatures to trigger recalls of Woodhouse and Cannizzaro, but the cases have been mired in various legal challenges that have delayed any special recall election from being called.

Hutchison called the state’s recall process “empowering” and an “important process” for Nevada voters in an interview last year, with his former chief of staff saying in a statement that the lieutenant governor wanted to let the process play out and that he “trusts Nevada voters.”

No matter his personal views, there’s nothing in Nevada ethics law that would prevent Hutchison from working as a private attorney on the recalls or any other issue, as long as the cases he takes don’t conflict with his (relatively sparse) duties as lieutenant governor.

In an email, Nevada Commission on Ethics director Yvonne Nevarez-Goodson said state ethics law would only trigger a conflict if Hutchison decided to argue a case that would somehow conflict with his duties as the lieutenant governor, such as representing a person or organization with business before one of the boards that he sits on.

“I'm not certain what provision of the Ethics Law would outright prohibit Lt. Gov. Hutchison from arguing the recall case in his private capacity as an attorney,” she wrote in an email. “The Ethics Law wouldn't necessarily prohibit a public officer from engaging in activities related to his/her private profession. Instead, the Ethics Law would be relevant if the private representation/relationship was in conflict with his public duties as the Lt. Gov.”

Outside of taking the role of chief executive if the governor leaves office, Nevada’s Constitution and state law lays out relatively few requirements on the office of lieutenant governor. Outside of serving as president of the state Senate — a largely ceremonial position without the ability to cast a meaningful tie-breaking vote — state law lays out few other responsibilities for the lieutenant governor’s office.

Hutchison serves on several boards and committees, including the state’s Commission on Tourism, State Board of Transportation, Board of the Governor’s Office of Economic Development, the Executive Budget Audit Committee, Commission on Homeland Security and the Governor’s Commission on Energy Choice.

Stewart said that Hutchison avoids cases where the boards he sits on are named as parties in a case, and typically any cases brought against the state itself. He also said Hutchison has tried to avoid getting involved involved in any energy-related litigation given his role heading a 25-member commission studying the impact of a major energy restructuring ballot question.

Stewart also brushed aside concerns that Hutchison could possibly induce an ethical conflict by supporting efforts to remove lawmakers from the legislative body he presides over, noting that Hutchison would likely never preside over the state Senate again (barring a special session), and that it wasn’t necessarily unusual for him to support Republican candidates to replace Democrats.

“He’s a Republican, and whether it be from a policy perspective or not, I think he would prefer to have Republicans in the majority even after he’s gone,” he said.

Stewart said that Hutchison didn’t seek out the case. Stewart brought the case to the firm after leaving as Gov. Brian Sandoval’s general counsel in August 2017 and asked Hutchison to argue the case, calling him “one of the best litigators in Nevada.” He said the firm was being paid for arguing the case.

He also said that the lieutenant governor’s power to influence proceedings didn’t really change depending on party control, given the odd number of senators (21) and the limits on tie-breaking votes already written into the state’s constitution.

“I don’t know that if you watched the 2015 session and the 2017 session whether you could argue he had more power in 2015 or 2017,” Stewart said.

Stewart added that Hutchison often cites a 1960 law (NRS 1.310) that allows for the adjournment or delay of legal action or a proceeding if either the party or attorney is legislator or “President of the Senate” (lieutenant governor) during the state’s 120-day legislative session. He said that law indicates the Legislature anticipated that the lieutenant governor, in addition to members of the Legislature, would need to keep outside employment despite serving in office.

Hutchison was elected to the state Senate in 2012, but after reportedly mulling several bids for higher office, he announced in January 2017 that he wouldn’t run to replace Gov. Brian Sandoval and said later that year that he wouldn’t run for re-election in 2018.

Update, 8:45 AM: Two corrections were made to this story -- the name of the funding source for the recalls and the year Hutchison was elected.


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