A repellant for tyrants: Part III

Ignoring Nevada's separation-of-powers clause has led to constitutional mayhem

By Joseph Becker
  • Tuesday, November 22, 2011

When state governments ignore the separation-of-powers provisions in their state constitutions, bad things happen.

The separation-of-powers doctrine provides that government officials entrusted with duties and powers in either the judicial, executive or legislative branch of government are prohibited from exercising powers or interfering with those exercising powers in the other branches.

In the federal constitution, the separation of powers is implicit in its structure. And although it does not mandate the doctrine upon the states, most states have embodied its tenets and have done so expressly.

Nevada has done so even more tenaciously than most states. Article 3, Section 1, of Nevada's constitution says, "no persons charged with the exercise of powers properly belonging to one of these departments [legislative, executive, and judicial] shall exercise any functions appertaining to either of the others." (Emphasis added)

The United States' constitution limited the federal government's sphere of power and influence to only those few powers enumerated within the document, and the lion's share of governmental activity remained with the states under the Tenth Amendment. For this reason, the separation-of-powers principle at the state level is every bit as vital as at the federal level.

In Nevada, the last decade has seen multiple examples of constitutional mayhem arise because deference to the separation-of-powers doctrine is no longer standard operating procedure. In fact, two examples litter today's headlines.

One example is the congressional redistricting fiasco in which Nevada's executive and legislative branches ended up in a standoff over who "loved Hispanics more." Unable to reach a compromise, the legislative branch, with the complicity of the governor, unconstitutionally delegated its role to the judiciary.

Because of population changes relative to other states, as enumerated in the 2010 U.S. Census, Nevada was awarded an additional congressional seat in the U.S. House. Under Article 4, Section 5, of the Nevada Constitution, the responsibility to draw congressional districts lies with the Nevada Legislature. Although lawmakers passed two redistricting plans, the governor vetoed both of them.

Constitutionally, this leaves only two choices for the Legislature — either pass a bill which the governor will sign or muster the support necessary for two-thirds votes in the Assembly and Senate to override the gubernatorial veto. If this cannot be done, the third constitutional option is for the governor to use his constitutional authority to call the Legislature into special session until they hammer something out that either he will not veto or the Legislature can override.

This, of course, did not happen. Instead, these two branches punted to the First District Court, which appointed, at taxpayers' expense, a panel of "special masters" to usurp the duties of the Legislature. Then the secretary of state appealed to the Supreme Court, charging the district court judge had "impermissibly abdicated" his duty to rule on key legal issues by appointing the special masters. Whereupon the Supreme Court approved the district court's — and the special masters' — usurpation.

Thus, if there's a legal challenge to the redistricting map, it will be appealed to ... whom? Why, the Nevada Supreme Court, of course — the very same governmental entity that facilitated the very plan whose constitutionality is being challenged.

Fair hearing for the challenger? You be the judge.

The second separation-of-powers debacle currently making headlines in Nevada is the Foreclosure Mediation Program, brainchild of the 2009 Nevada Legislature. Not surprisingly, the program is once again being challenged in state court.

For starters, it is important to understand that the Foreclosure Mediation Program attempts to legitimize the unconstitutional taking of private property. The legislature's imposition of a duty (upon the court, no less) to renegotiate mortgages between parties to an already existing private contract, for some public benefit, violates the Takings Clauses of both the U.S. and Nevada constitutions.

Making matters decidedly worse and violating the all-important separation-of-powers clause in the process was the Nevada Legislature's imposition of the responsibility for executing this constitutionally infirm mischief upon the judicial branch, rather than the executive branch. The court's proper role is to adjudicate actual cases or controversies between real and adverse parties — not those invented or conjured up through legislative malfeasance.

So, because the Legislature ignored the separation-of-powers clause in 2009, the same individuals who were consulted to assist with crafting the original law, who implemented the program from its outset, who promote the program on their website, who boast regarding the number of Nevadans helped by the program, and who collect fees for the program's administration, are constitutionally charged with the role of impartial adjudicators of the program's constitutionality!

Even though it is the state's high court that should hear this case, it is not difficult to see that the Supreme Court justices, by abandoning the separation-of-powers principles in 2009, have created for themselves a significant conflict of interest and must now recuse themselves from hearing the very case over which they should pass judgment.

Of course, there's even more fun to be had in the separation-of-powers arena by going back only seven years to a time when now-U.S. Senator Dean Heller was secretary of state and now-Governor Brian Sandoval was attorney general.

Frustrated by a Nevada Assembly and Senate occupied by state employees voting themselves pay raises during their four-month stint in Carson City, then-secretary Heller brought a suit challenging the constitutionality of this practice. After all, as cited above, the Nevada Constitution reads that "no person charged with the exercise of powers properly belonging to one of these departments [legislative, executive, and judicial] shall exercise any functions appertaining to either of the others." (Emphasis added)

Nevertheless, in a twist of jurisprudential irony, the Nevada Supreme Court dodged this political hot potato by invoking a separation-of-powers principle.

The justices denied standing to Heller's challenge, holding that under the separation-of-powers clause itself, only the Legislature has the right to decide who may properly sit in its chambers.

For the court to so determine would, said the justices, violate the very separation-of-powers provision in the Nevada Constitution that Heller had implored the court to invoke.

Joseph Becker is chief legal officer and director of the Center for Justice and Constitutional Litigation at the Nevada Policy Research Institute. For more visit http://justice.npri.org and http://npri.org.

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