Flat-Earth Barristers

Among all the American jokes at the expense of lawyers and politicians is one so deftly on-target that even lawyers and politicians, long ago, made its punch line part of their idiom.

According to one version of the story, a newly minted attorney, desperate for work during the Great Depression, is interviewing with a wealthy widow. He’s quite eager to land her as a client, but she seems somewhat eccentric and difficult to read. Finally, however, she looks around a bit conspiratorially and then leans forward. “Sir,” she asks, her big eyes peering intently into his, “are you with those who say this world is round—or with those who say it’s flat?”

At first the young barrister is at a loss how to respond. Then his hungry stomach growls.

“I can argue it round, or I can argue it flat,” he replies, “whichever way you’d like.”

Former President Lyndon Johnson, over the course of his public life, repeated that punch line many times. For him and for others it has been a kind of facetious shorthand—implicitly boasting of a commitment to truth that is, shall we say, contingent. For this crowd, truth itself is merely a side issue—just one more politicized commodity to be tossed into, or withheld from, whatever governmental slumgullion they’re currently concocting.

Here in the Silver State, voters and taxpayers for decades have been subjected to a tiresome train of “argue it flat” state attorneys general. Time and again—on the question of the constitution’s ban on local government employees also making state laws—the AGs have pretended agnosticism about the simplest questions of fact or logic.

The backdrop to all this tap dancing, of course, is the reality that Nevada’s local-government employee unions have long been the most powerful political force in this state. Further, in those unions’ decade-plus alliance of cynicism with the Nevada Resort Association, that power has been even further amplified. Thus our state attorneys general—when faced with the risk they might find their career ambitions hampered by resentment in the state’s political-gorilla camp—have long chosen to flee the field.

Unfortunately, the opinion released by the office of Nevada’s current attorney general, Brian Sandoval, only splits the difference with this dubious tradition. On the one hand it capably explains why allowing certain (university system) employees of the state executive branch to also exercise legislative branch power is both unconstitutional and a threat to our liberties. But when it confronts the even more radical, aggressive and indeed, successful campaign of another set of executive branch employees—members of powerful local-government unions—to sit in the state Legislature, this white paper dissolves into artful dodgery.

Specifically, the AG’s opinion actively connives to evade one of the most basic and settled principles of American constitutional law. As the U.S. Supreme Court wrote in Atkins v. Kansas (1903), local governments “are the creatures—mere political subdivisions—of the state, for the purpose of exercising a part of its powers. (Emphasis added.)

And as Article 3, Section 1, of the Nevada Constitution says, “The powers of the Government of the State of Nevada shall be [i.e., are] divided into three separate departments,—the Legislative,—the Executive and the Judicial;…”

In short, there are no important functions exercised in Nevada’s statewide system of governance that are neither legislative, executive or judicial. And while all of those powers and functions are exercised at the state level, they are also, necessarily, exercised at the local level.

Yet the opinion’s authors pretend to be agnostics regarding this definitional truism. Their goal is to discard a prior attorney general’s opinion (1955) that local government employees primarily exercise “a function appertaining to the executive branch.” Which, of course, would constitutionally exclude them from sitting in the state legislature.

Fatuously, the new opinion’s authors assert that the 1955 opinion is deficient for the lack of “an explicit legal citation to support the conclusion” that school district employees—executing the state’s educational mandate—are primarily members of the executive branch. No doubt the AG’s staff lawyers—wearing shades and tapping about with white canes—would also demand “explicit legal citation” before admitting that municipal courts perform a judicial function.

Seventy percent of Nevada’s population, money and political power is concentrated in just one of its counties.

Given such a situation, permitting local government employees to not only implement state law but also make it in Carson City mocks the very concept of the separation of governmental powers.

Steven Miller is policy director of the Nevada Policy Research Institute.