EDITORIAL: The fourth branch? Not so fast

The recent special session in Carson City included consideration of several high-profile bills, including a vast expansion of the state film tax subsidies (failed) and Gov. Joe Lombardo’s “tough on crime” legislation (passed). But one of the most important pieces of legislation to emerge from the gathering was a little-noticed bill offering a much-needed rebuke to the Nevada Supreme Court.

Schoolchildren are taught — or at least used to be — that the U.S. government consists of three branches: the executive, the legislative and the judicial. Each branch exerts certain checks and balances over the others. The 50 states, including Nevada, modeled their governments after the federal system.

Yet in a decision last year, the state Supreme Court brushed aside more than two centuries of precedent and arbitrarily created a fourth branch of government — the university system — out of whole cloth.

The case featured a decades-long dispute about public employees serving in the Legislature. The separation of powers clause in the Nevada Constitution holds that “no persons charged with the exercise of powers properly belonging to one of” the three branches of government “shall exercise any functions, appertaining to either of the others.” The purpose is to prevent the consolidation of power, which the Founders recognized as the precursor to tyranny. Yet for decades, various public employees ignored this prohibition and simultaneously served as state lawmakers.

A handful of efforts over the years to challenge this practice died in the courts on technical grounds. But a case contesting the dual service of six public employees recently made its way to the state Supreme Court, where a narrow 4-3 majority held in November 2024 that the restriction doesn’t apply to local government workers or to those moonlighting in the state university system.

The majority opinion justified the latter by insisting that the “Nevada System of Higher Education is not organized within the executive department.” This is a curious and novel view. If the university system isn’t part of the executive, where does it fall within the hierarchy of state government? Certainly, it’s not part of the legislative or judicial branches. The logical conclusion is that, to reach their desired ends, the majority justices deemed the state’s system of higher education to be a separate branch of government despite the absence of any constitutional language to support this conclusion.

As Justice Douglas Herndon wrote in dissent, the majority implies that the university system operates “in an unnamed, discrete department of state government. This is both legal error and contradictory to the constitution.”

Enter state lawmakers, who recognized the potential problems created if this large entity were legally deemed to be operating independent of the executive branch. Senate Bill 2, passed unanimously in the Assembly and Senate during the special session last month and signed by Lombardo, clarifies that no such fourth branch of state government exists.

“In a recent opinion,” the bill’s synopsis reads, “the Nevada Supreme Court erroneously construed the Legislative Counsel’s decisions in organizing the Nevada Revised Statutes by title, distinguished by subject, as required by law, to be a decision by the Legislature which ‘indicated its understanding’ that certain agencies of the executive department of the state government fall outside ‘the three departments of state government.’”

In fact, the bill goes on, none of this represents “a decision by the Legislature as to which department of the state government any state office, agency, court or other entity is located or to exclude any state office, agency, court or other entity from the three departments of the state government,” and the courts are prohibited from “construing the organization of the Nevada Revised Statutes in such a manner.”

The legislation undermines a key provision of the high court’s dubious decision on the separation of powers, potentially paving the way for more legal disputes. Good for lawmakers. The house of cards that allowed university system employees to also serve as state lawmakers has collapsed.