Separation of powers

The language is clear and concise, explaining what every child learns in civics class. The state government "shall be divided into three separate departments; the legislative, the executive and the judicial."

Furthermore, notes the Nevada Constitution, "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 ... ."

Yet for the past 40 years, scores of public employees in Nevada -- along with the judicial system and the rest of the political establishment -- have turned a blind eye to the separation of powers clause and served in the Legislature while collecting paychecks from their taxpayer-funded day jobs.

Not only has this resulted in a lawmaking body filled with members who have a direct interest in expanding the size and scope of the state at the expense of taxpayers -- public employees currently constitute about one-third of the Legislature -- it ignores the very real concerns this nation's founders expressed about the preservation of liberty and the dangers of consolidated power.

But may this affront to the rule of law finally be coming to an end?

Last week, the Nevada Policy Research Institute -- a libertarian-oriented think tank based in Las Vegas -- filed suit in Carson City District Court challenging state Sen. Mo Denis' right to hold a job with the state Public Utilities Commission while also serving in Carson City. The legal action has the potential to dramatically alter Nevada's political landscape.

The lawsuit is grounded in the state constitution's plain wording. Sen. Denis is poised to become the top Democrat in the Legislature's upper chamber, and he also works as a computer technician with the PUC. As a lawmaker, he is "charged with the exercise of powers." Therefore, he is prohibited from exercising "any functions" in the executive branch, which includes the PUC. It should be cut and dried.

But Nevada's political institutions -- including the state's judiciary -- have an unfortunate track record of rationalizing the status quo, regardless of constitutional concerns. Witness the state Supreme Court's willingness in 2003 to let lawmakers ignore the voter-approved supermajority requirement to pass tax increases. Or the very existence of "interim" legislative committees that meet and act outside the state constitution's 120-day limit on biennial sessions.

Not even when Attorney General Brian Sandoval (now our governor) issued an opinion in 2004 holding that an executive branch employee may not also serve as a lawmaker did anything change. Instead, the wink-and-nod game continued.

Until now.

Critics of the lawsuit argue it's unfair to prevent an entire class of Nevadan from serving in the state's part-time citizen Legislature. Really? Unfair to whom? Certainly not to the private-sector taxpayers who fund the entire enterprise. Besides, the honorable recourse then is to amend the state constitution, not pretend the clause doesn't exist.

In fact, any conflicts of interest a private-sector business owner or accountant might encounter while serving in the Legislature will rarely if ever rise to the level of the myriad endemic conflicts a government employee will face every day operating in Carson City.

Nor is this just about conflicts. The precise point of the separation of powers doctrine -- also enshrined in the U.S. Constitution -- is to ensure that the great and vast power of the state be spread far and wide, among as many hands as possible. There are very good reasons, after all, why we don't allow police officers to simultaneously serve on the bench.

The founders -- with help from Montesquieu -- understood that the very notion of liberty depended on the deconsolidation of state power. "The accumulation of powers ... in the same hands," observed James Madison in The Federalist Papers, No. 47, "whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny."

This lawsuit has been a long time coming. The legal case is sound, the state constitution clear. Now it's time for a judge to do the right thing.