It’s long past time to stop ignoring the constitution

Mo Denis is an unlikely candidate for tyrant.

The Democrats’ incoming Senate leader is universally described as nice, a consensus builder and somebody who won’t attack Republicans even when baited.

But Denis now finds himself thrust to the center of a decades-old constitutional debate over the meaning of Nevada’s separation-of-powers doctrine, thanks to the fact that he’s also a full-time employee of the Nevada Public Utilities Commission.

On Wednesday, the Nevada Policy Research Institute’s new Center for Justice and Constitutional Litigation filed a lawsuit against Denis, asking the courts to remove him from his job as a computer technician at the PUC on the grounds that he can’t serve both as an elected official and a state government employee under Article 3, Section 1 of the Nevada Constitution.

(For those who don’t have their copy handy, that passage reads: “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 the powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others.”)

Two things must be said right away.

First, although liberals criticized NPRI for yet another whack against public employees, the conservative think tank has actually done us a service. There have been conflicting attorney general and Legislative Counsel Bureau opinions about whether government employees may serve in the Legislature going back more than 40 years. No Nevada court has definitively addressed the issue. Now, thanks to NPRI, we will get that chance.

Attorney Joseph Becker — who brought the case — should be commended for his careful approach. By suing on behalf of an individual, William Pojunis, who says he seeks the PUC job Denis now holds, Becker avoided two major pitfalls. This ensures there is an actual controversy, so the courts cannot reject the lawsuit on the grounds that it seeks merely an advisory opinion on a question of constitutional law. And by attacking Denis’ full-time employment rather than his legislative service, Becker avoids the conflict between the separation of powers clause and Article 4, Section 6, which stipulates the Legislature itself is the final judge of its members’ qualifications.

That’s what stymied the last real attempt to resolve this issue.

Second, we must focus on the real issue. Immediately after news of the lawsuit broke, a common objection surfaced, that it’s simply not fair to disallow state executive branch employees to serve in office when everyone else presumably has that right. What is the harm of a schoolteacher or a highway patrolman or, yes, a computer technician, serving when it’s perfectly OK for the head of a mining trade group or a lawyer whose firm represents the state’s largest casinos?

This we may classify as an irony, but irony is no defense to a constitutional violation.

There are attorneys general and legislative lawyers who have opined that government employees can serve in the Legislature. If state lawmakers who hold government jobs are so confident in that reasoning, they should order their lawyers to intervene in the case. Let all arguments be heard!

In Nevada, we tend to ignore constitutional problems rather than confront them. A split-roll property tax cap (3 percent for residential property and 8 percent for commercial) is very likely unconstitutional, but it remains on the books. The Interim Finance Committee might not pass constitutional muster, but it continues to meet. By failing to establish a method for medical marijuana patients to get their medicine, the Legislature has flat-out ignored the express will of the voters for a decade. But we whistle past the constitutional graveyard, hoping nobody upsets the apple cart.

That’s no way to live in a constitutional democracy. And by filing this lawsuit, NPRI has forced the courts — and we the people — to finally answer a legitimate question that’s been ignored for far too long.

Good for them.

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

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