The Nevada Policy Research Institute’s legal arm says its lawsuit against state Sen. Mo Denis for allegedly unconstitutionally holding an elective office and a position in the executive branch simultaneously shouldn’t be dismissed, even though he’s quit his state job and the alleged violation appears to be moot.
The conservative think tank shouldn’t hold its breath.
Although NPRI Center for Justice and Constitutional Litigation attorney Joseph Becker gamely argues several exceptions to the mootness doctrine — more on that below — the fact remains that the instant controversy that gave rise to the lawsuit is gone. And as Becker notes in his court filing, Nevada courts generally decide only cases that present live controversies. The likelihood that a court will — or at least should — dismiss this case is high.
Background
The Center for Justice and Constitutional Litigation sued Denis in November, alleging a violation of the Nevada Constitution, specifically Article 3, Section 1, 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.”
Since Denis at the time held a job as a computer technician with the state Public Utilities Commission, the center claimed he was exercising the functions of the executive branch while simultaneously, by virtue of his elected position as a state senator, exercising the powers of the legislative branch.
No court had yet ruled directly on the issue, and a variety of attorney general opinions stretching back decades came to different conclusions. (Most recently, then-Attorney General Brian Sandoval‘s 2004 opinion held that state employees were forbidden from holding elected positions in the Legislature, but local government employees were not.)
So the lawsuit was timely, compelling and definitely concerned a matter of public interest, at least until December, when Denis announced he was resigning from his state job to take over as director of information technology for a private construction firm.
Speculative arguments
In its brief opposition Denis’s motion to dismiss, the center says Denis’s resignation is proof the original complaint has merit. “In essence, this resignation also constitutes a de facto admission on the merits of this case,” Becker writes.
But this is wrong, for two reasons: First, it assumes that a court will eventually rule that simultaneous service in the Legislature and the executive branch is, in fact, barred by the Constitution. The variety of opinions on the subject and the fact that a lawsuit had to be filed to resolve it show, if nothing else, that the matter is far from settled. The merits of the case have yet to be proven, and Denis’s actions do not prove NPRI’s case.
Second, Denis’s explanation of his resignation — that his duties as incoming Senate Democratic leader required more of his time, that his new job would afford him more flexibility to attend to those duties than his state position, and that his job search was in the works long before the lawsuit was filed — is at least as plausible as NPRI’s explanation, which is that he resigned to moot the lawsuit and avoid a hearing on the issue. In either case, speculation as to Denis’s motives is not proof of anything.
It could happen again
NPRI also argues that Denis’s voluntary resignation doesn’t make the lawsuit moot because another state executive branch employee may run for public office, and the same situation could recur, requiring the filing of yet another lawsuit. Becker quotes a U.S. Supreme Court ruling thus: “Voluntary cessation does not moot a case or controversy unless subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
But again, that’s speculation, and it runs counter to Becker’s own argument. According to Becker’s petition — although I take issue with the contention above — Denis fled his state job rather than face the implications of NPRI’s lawsuit. It stands to reason that, if that is why Denis resigned, other Democrats may similarly avoid a dual-service situation to avoid the same outcome. But, in any event, a court may very likely say that NPRI is free to bring a lawsuit should that situation recur, and a “live controversy” result. Potential officeholders are thus on notice, and may guide their behavior accordingly.
Assumes facts not in evidence
Becker also argues that, although his lawsuit was filed against Denis and Denis alone, other lawmakers are potentially violating the separation-of-powers clause by their service in local government or in local public schools. “…[T]here are already numerous, similarly situated, potential defendants currently violating the same constitutional provision by serving functions in more than one branch [of government] simultaneously.”
But this isn’t entirely accurate. First, only Denis held a state job clearly within the executive branch of government. (Denis, in a discussion with me in December, argued the PUC may not be considered part of the “executive branch,” but I reject that contention.) No other lawmaker-public employee has such a job, and therefore they are not “similarly situated” to Denis.
Second, it has yet to be established that local government employees are exercising the functions of the executive branch of state government. Since Nevada is a Dillon’s Rule state and all local political subdivisions have only that authority granted or implied to them by state statute, it’s reasonable to argue that local government employees are de facto functionaries of the executive branch. But it’s yet to be proven that they are (indeed, Sandoval’s 2004 opinion concluded that they were not).
In order to resolve that controversy, however, NPRI will have to sue a local government employee and advance the case against them. This lawsuit specifically does not do that.
They want his back pay?
Becker further argues that — if Denis’s dual service was barred by the constitution — then all the pay he received in his state job should be returned to the state. And while this appears to be primarily a tactic to keep the lawsuit alive, this claim cannot stand on its own.
First, Denis had no constructive notice that his dual service was unconstitutional. Yes, the language of Article 3, Section 1 is unmistakably clear. But attorney general’s opinions in more recent years suggest that dual service is possible, provided one is not a supervisor, director or official charged with actually directing state policy. Moreover, opinions from the Legislative Counsel Bureau — which advises state lawmakers — also blessed dual service. Therefore, Denis had at least as much reason to believe his holding of a state job while serving in the Assembly and, later, state Senate, was legitimate as he had to doubt the same.
Second, because of the lack of notice, and because Denis ostensibly performed the duties of his state job to the satisfaction of his superiors, it’s highly unlikely a court would demand he return all the money he made during the period when he was working as both a computer technician and serving in the Legislature. Essentially, he earned that money, along with his retirement benefits, and that should not be taken away from him absent a showing of intentional wrongdoing, a penalty for which is forfeiture of pay. Even if NPRI’s contention about the separation of powers is correct — and there’s ample reason to believe it is — there’s no basis upon which to reclaim Denis’s back pay. On these grounds, too, the brief fails.
But they’re right about this part
But when Becker argues that the case raises an important question of public policy, the resolution of which would be helpful to guide public officers, he’s absolutely correct. “The instant case is the quintessential ‘poster child’ for the public interest exception denoted…” in previous court rulings, Becker wrote.
Indeed, it is: A resolution of the question would be helpful, not only to every public employee in Nevada — whether state or local — who wants to run for office, but for the public in general. This issue has been debated at length on newspaper opinion pages and in the attorney general’s office, without solid resolution or general consensus. There are compelling legal arguments on both sides, as well as compelling practical arguments (for example, the alleged tendency of public employees to “side with” government, versus the fundamental unfairness of denying Nevada citizens the right to seek public office because of their employment). We look to the courts at times like this to decide controversies.
However, it’s probably not going to happen here, since — despite Becker’s best efforts — the case is moot. Unless another state executive branch employee gets elected to the Legislature, or NPRI sues a local government, school district or university employee on the same grounds as it sued Denis, it appears a final ruling on this question will remain elusive.
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Let’s keep this issue in perspective. Joseph Becker also argues that federal agencies that enact rules and enforce them via administrative hearings, i.e. the IRS, etc. etc., are violating separation of powers doctrine in the U.S. Constitution. That is plainly absurd. This argument is also strictly a textual argument (strict construction) that completely ignores original intent and history.
Careful, Justin: For more than 100 years of Nevada’s history, this passage WAS interpreted as prohibiting public employees from serving. That suggests original intent was to bar such service, and allowing it (a recent invention) is what’s incongruent with history and original intent.
Wait, when were public employees prohibited from serving in the legislature? In any event, the language was borrowed verbatim from the 18th century Massachusetts constitution, and the exact same language is used all over the nation in state constitutions. It’s a copy and paste clause. Fortunately, we know that the guy who originally drafted the language (John Adams) has been pretty clear that it wasn’t meant to be the kind of strict prohibition these crackpots are claiming. How many states actually interpret their exact same clause this way???? Any Nevada Court decisions to the contrary are unfortunate. But that doesn’t mean they got it right on the history or the original intent.
During the 19th century, many state constitutions fell victim to the cut and paste approach. For example, many state constitutions started including provisions nearly identical to the 9th Amendment in the federal constitution. In reality, the 9th Amendment’s language has no business in a state constitution because it’s a federalism provision. It accounts for the numeration of rights added with the ratification of the Bill of Rights, while also acknowledging the retention of the limited powers scheme in the body of the Constitution, thus protecting “the rights retained by the people” not specifically enumerated in the Bill of Rights.
Justin: From the founding of the state (1864) to at least the 1960s, state executive branch employees were prohibited from serving in the Legislature. In one memorable case, a high school janitor was ruled ineligible to serve. Starting in the 1960s, that prohibition was slowly eroded, until we have what we have today. The state of California — upon which Nevada’s constitution was based — contained a similar provision, similarly interpreted.
P.S. I think there’s a great deal of merit to the constitutional argument, and I don’t consider myself a “crackpot.”
To clarify, they qualify as crackpots for a slew of reasons – not on this basis alone. You are no crackpot.
But I have to ask a follow up question here. Do you buy the separation of powers argument that only the Nevada legislature can determine who qualifies to serve in the legislature, as the California Supreme Court has also decided?
And further, do you believe that the veto function is also unconstitutional, since the executive branch can perform no function of the legislative branch? How about administrative hearings? Do SOS election rules hearing violate separation of powers, because they are performing judicial function?
You are setting at odds two constitutional principles that are not contradictory. Read in harmony, they mean that while the Legislature is the final judge of the elections, qualifications and returns of its members, it may not countermand the equally valid constitutional disqualification for any person exercising the “functions of the executive branch.” It’s akin to a Cigar Club Constitution that specifies the club membership can set qualifications for joining, however no non-smokers may join. The latter is controlling upon the former without doing violence to the concept of standard-setting, because they are both constitutional provisions of equal weight.
I believe that the veto function is constitutional, by virtue of the fact that it is in the constitution. (Ask a silly question…) But I believe a line-item veto may be unconstitutional on those grounds, as the federal line-item veto was found to be. Administrative hearings? I cannot answer without additional specificity. Secretary of State rulemaking is perfectly constitution, provided the same does not exceed the warrant granted by the Legislature, nor ignore its commands.
Hope that helps.
With the SOS, one can argue that if they are holding hearings, hearing facts, and determining if someone gets fined for a violation of state election laws, this qualifies as violation of “shall not perform any function” of the judicial branch. It’s a quasi judicial function, is it not?
Can the legislature violate the Constitution by making it law that one of the agencies of the executive branch can perform judicial functions?
I’m saying if we are going to be so strict in interpretation, then we should be consistently strict. Really I’m saying that all such strict interpretations don’t make much sense in the light of how our governments work, or in light of the original purpose of the clause.
This clause is about separation of powers. When this clause was drafted, it was not ever the intent to focus on individuals employed by the executive serving in the legislature. The intent was to keep the legislature from being law maker, enforcer, and judge of the law. It’s that simple. Think about it in context of the founding generation, and their dealings with Britain. That is where/when the clause originates from.
Respectfully…
It’s a leap to take the separation of powers clause to apply to public employees serving in the legislature. This is a cleverly crafted argument by the anti-union crowd.
Grant you I need to take a closer look at your points about Nevada’s specific case law and history.
All nice arguments. None of us is a judge. None of us can make the decision. (unless Justin happens to be one…) ;)
I say, let NPRI tilt away if they so choose, they will (sadly) only hurt themselves.
If I was in a place to make a suggestion to them I would say they need to file another, then another and another until one sticks.
I too believe in total separation of function and power. Like it was the first hundred or so years in NV and applaud them for trying. Now I hope they don’t get all crackpot over the setback.
Cool!
emoticons….
Steve,
Can you give a citation to the Nevada case that ruled a school janitor was unable to serve in two branches at once? I have a feeling this may be an apocryphal reference. I believe there was a similar case under the California Constitution of 1849 (superseded in 1879). I don’t have the citation handy at the moment, but if memory serves, the California Supreme Court at the time held the separation of powers clause worked a rigid division between the branches such that even mere employment in two branches was impermissible. The people of California rejected that interpretation when their constitution was redrafted in 1879. I also believe that the janitor example was litigated under the incompatibility clause (Nevada’s analog provision is art. 4, sec. 8), not the separation of powers clause.
In fact, there is a Nevada Attorney General opinion (albeit departing from your asserted original meaning of the separation of powers clause) that concluded a maintenance engineer for a school district was not a civil office of profit under art. 4, sec. 8. See AGO 62 (5-17-1955).
If the separation of powers is an absolute bar for legislators holding employment in two branches of government at once, why do we need the language in art. 4, sec. 8, which at the very least seems a little redundant? Also, why tailor it more narrowly (the distinction between civil office and employment)?
As to Justin’s comments, the Nevada Supreme Court has repeatedly upheld quasi-judicial functions as not violating the separation of powers doctrine. See, e.g., Sawyer v. Dooley, 21 Nev. 390, 32 P. 437 (executive branch not prohibited from assessing property and equalizing values); Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803 (1914) (statute authorizing state engineer to determine relative water rights not void as vesting judicial powers in executive officer). As to the purpose of the clause, I generally agree.
Sean here is your Janitor:
ag.state.nv.us/publications/ago/archive/1955_AGO.pdf
An employee of the Hawthorne Elementary School District No. 7 in the capacity of inspector and maintenance man for the elementary school is also a member of the Nevada Assembly having been elected in 1952 and reelected in 1954. He has served as inspector and maintenance man for two years last past on a monthly salary basis, except for a period of time from January 15, 1955, when he resigned—to March 28, 1955, when he resumed said employment. During the interim he served as Assemblyman.
Have to ask , with all the citeas and research you did. How could not locate this?
Also If you are saying As to the purpose of the clause, I generally agree. meens you hold the seperation clause includes janitors then I agree with you.
Man, everyones blog responds differently to html tags.
Still its fun to figure it out. ;)
Oh yeah, forgot. in the pdf search for OPINION NO. 1955-59.</u)
Oops
OPINION NO. 1955-59.
Alas, I was expecting a Nevada Supreme Court case, not a terse Attorney General opinion that cites to no judicial authority. I guess that’s the supposed deficiency in my research. AG opinions are not binding on the courts. They may be persuasive where well reasoned, but I’d hardly say that the particular opinion (1955-59) qualifies.
Well, who would take the AG to court over SUPPORTING the Constitution of Nevada?
It was later AG’s that weakened the constitutional separation of powers and that IS leading to court cases.
I think the whole thing was politically motivated anyway.
The 1956 special session had vacancy from Mineral county filled by Bruce Parks. A Democrat. It stands to reason the janitor was a democrat.
I bet someone did not want a Democrat elementary school janitor serving in that special session.
BTW its is almost impossible to find who the assemblyman from Mineral County was in 1955. At least I have about given up on that search.
Charles A. Hendel, served from 1950-1958 (http://leg.state.nv.us/Division/Research/Publications/NVLegislators/NVLegislators.pdf#page=40).
Doesn’t make sense. They filled the vacancy prior to the 1956 special session with Bruce Parks.
leg.state.nv.us/Division/Research/Publications/Factsheets/Vacancies.pdf
Steve,
There were two assemblymen from Mineral County in the 1955 (47th Session), Charles Hendel, a Republican, and Keith Mount, a Democrat. Mount’s seat became vacant before the Eighth Special Session in 1956 and was filled by Bruce Parks, a Democrat. (Political History of Nevada, 2006 ed., p. 279) This is all verified by looking at the Journal of the Assembly for the two sessions. I can’t tell the circumstances surrounding Mount’s vacancy.