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EDITORIAL: Moonlighting lawmakers catch another break

A District Court judge has joined Humpty Dumpty to declare that words can mean whatever she wants them to mean. It’s a setback for the rule of law.

Article 3, Section 1 of the Nevada Constitution divides the state government into three branches — the legislative, executive and judicial — and declares “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.”

It’s unambiguous language and pays homage to the notion that liberty is best advanced by the deconsolidation of government authority. Putting state power in too few hands paves the road to tyranny.

Yet for decades, dozens of state lawmakers have flouted the separation-of-powers clause as the courts have largely looked the other way. That may change soon, however, as the state Supreme Court is considering a case challenging the prosecution of a defendant by a Clark County assistant district attorney who also served in the state Senate.

In the meantime, a case involving a handful of lawmakers who are also public employees made its way to District Judge Jessica Peterson’s courtroom. On Wednesday, she ruled that the separation-of-powers clause doesn’t mean what it says.

In a remarkable 30-page opinion, Judge Peterson bobs, weaves, dodges, deflects and swerves to avoid the issue at hand and instead creates — hocus-pocus style — a three-pronged judicial test to determine whether a public employee’s service in Carson City presents a problem. Not surprisingly, the lawmakers in question all passed the test.

At no point does Judge Peterson parse Article 3, Section 1 to explain why it doesn’t mean what it clearly states — she doesn’t acknowledge its language. And while insisting she has “reviewed the words and intent of the Nevada Constitution,” Judge Peterson writes that, “While many states have specific constitutional or statutory prohibitions against dual public employment, Nevada is not one of those states.” Come again? Is Article 3, Section 1 not a “specific” constitutional prohibition “against dual public employment”?

Judge Peterson goes to pains to differentiate between a public employee and public officer. The codicil at issue makes no such distinction. As for the difference between state and local public workers, Nevada is not a home rule state and the powers of local governments depend on the Legislature.

A public employee serving simultaneously as a lawmaker is clearly “charged with the exercise of powers” in the legislative branch. That moonlighting lawmaker is thus banned from carrying out “any functions, appertaining to either” the judicial or executive branch. The emphasis is on “any.” Judge Peterson’s denial of the obvious leaves it to the Nevada Supreme Court to determine if lawmakers may continue to freely ignore constitutional restrictions they find inconvenient.

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