For now, no answers on separation-of-powers case

It was a good effort.

Nobody was more supportive than I when the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation filed a lawsuit seeking to get the issue of separation of powers squarely before the courts.

The group’s director, Joseph Becker, picked as his target state Sen. Mo Denis, who at the time worked for the Public Utilities Commission as a computer specialist. And while I think Denis is a very nice person and an effective legislator, that wasn’t the issue.

Instead, the issue was this: Can a person work in the executive branch of state government while at the same time serving in the Legislature? Or is that banned under the state constitution, which says, “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.”

For decades, everyone believed the constitution didn’t allow a person in Denis’ situation to be a legislator. In one memorable case, a school janitor was told he couldn’t serve in the Legislature as long as he held his public job.

But starting about 50 years ago, that began to change. Little by little, attorney general opinions chipped away at the traditional understanding, and a new doctrine emerged: So long as a person wasn’t a supervisor, director or manager, he or she could serve. Currently, several members of the Legislature have full-time jobs in local government, but only Denis represented a case squarely on point: a full-time state employee who was also a lawmaker.

In November, Becker sued on behalf of a man who claimed he would apply for Denis’ job, if only Denis wasn’t unconstitutionally serving in it. And at long last, Nevada was going to get the answer to a very thorny, long-ignored question.

Then Denis resigned in December and took a job in the private sector. And when he did, the controversy vanished, and along with it, the case.

Becker gamely tried every argument in the legal playbook, a comprehensive Hail Mary brief practically begging Carson City District Judge James Todd Russell to hear the case anyway. Most of the arguments didn’t hold water, but one — essentially, the idea that resolving the case was in the public interest — held the most promise. But it was a long shot, at best.

On Monday, Russell rejected Becker’s appeals and dismissed the case.

But Becker’s not done yet: He announced after the decision that he’ll appeal. He cited the conflicting attorney general opinions on the matter, the remaining public employees still serving (albeit none of them state executive branch workers), and even the words of Gov. Brian Sandoval, who has wished for the state’s high court to “settle it once and for all.” (Sandoval, by the way, authored one of those attorney general opinions, which held state employees can’t serve in the Legislature, but local government employees can.)

Again, Becker faces long odds. Nevada courts have been very reluctant to wade into cases without an actual controversy. And with good reason: They have plenty of actual controversies to resolve without issuing advisory opinions on matters hypothetical.

It’s too bad, too, because there are plenty of Nevadans — count me and Sandoval among them — who want to see this issue resolved.  

But we’re probably going to have to wait for a defendant who’s willing to fight it out with the NRPI’s legal arm.

 

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or ssebelius@reviewjournal.com.

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