Drilling down into NPRI's separation-of-powers lawsuit

Responses to some common questions about the case and the principles at stake

By Andy Matthews
  • Monday, December 19, 2011

The recent lawsuit launched to defend the separation-of-powers clause in Nevada's constitution — filed by NPRI's new Center for Justice and Constitutional Litigation — has to date met an overwhelmingly positive response.

Around the state, citizens, lawmakers and members of the media have applauded CJCL for acting decisively against a blatant and long-standing violation of the state constitution.

That violation is the employment, by the Public Utilities Commission and the State of Nevada, of a state legislator, state Sen. Mo Denis, in an executive-branch job — notwithstanding the express prohibition of Article 3, Section 1 of the Nevada Constitution.

Many questions regarding the case are circulating on TV and radio, in news articles and on Twitter and other social media sites. What follows is a sampling of some of the more common questions, and answers to them.

Question: What is the practical meaning of this lawsuit?

Answer: If the court follows the clear wording of Nevada's constitution, Sen. Denis will be told that he may not keep his executive-branch employment while serving in the Legislature.

Other lawmakers working in either the executive branch or judicial branch would be similarly situated. Current members of the Assembly who work for entities of state or local government include Kelvin Atkinson, Olivia Diaz, Jason Frierson, Scott Hammond, Melissa Woodbury and Speaker John Oceguera. State Senators include not only Denis, but also Ruben Kihuen and Sheila Leslie.

Additionally, the lawsuit puts any future candidates for the state legislature on notice: It is illegal to draw employment checks from either the executive or judicial branch while serving in the Legislature. Those candidates would know, going in, that they must choose in which branch of government they hope to serve.

Q: Your lawsuit specifically names Sen. Mo Denis. Why should he have to leave the Senate, just because he manages computer networks for the PUC?

A: This question arises out of a misunderstanding of CJCL's lawsuit, the text of which is available here. The case does not demand that Denis leave the Senate. Rather, it notes that Denis unconstitutionally holds a job in the executive branch despite having a seat in the Legislature, and petitions the court to order a halt to this lawbreaking by Denis and his employers, the State of Nevada and the Public Utilities Commission. The plaintiff in the case, after all, is Bill Pujonis, a computer and networking technician qualified for a PUC position that would be vacant — if it were not held illegally by state Sen. Denis.

Article 3, Section 1 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 powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others... (Emphasis added)

The constitution could not be clearer. If you're a legislator, you are not allowed to "exercise any functions" in the executive or judicial branches, even if you're "just" fixing computers.

Q: Isn't that a ridiculous and out-of-date constitutional provision? What threat to liberty or good government could Denis be if he's just a computer technician?

A: The Nevada Supreme Court dealt emphatically with that argument in the 1967 case Galloway v. Truesdell: "To permit even one seemingly harmless prohibited encroachment [upon the separation-of-powers principle] and adopt an indifferent attitude," said the court, "could lead to very destructive results." Indeed, noted the court, the separation-of-powers clause is "probably the most important single principle of government declaring and guaranteeing the liberties of the people."

Political philosophers, such as Montesquieu, and Founding Fathers, including James Madison, George Washington and Thomas Jefferson, have all acknowledged that separating governmental powers is, in the words of Madison, "essential to the preservation of liberty."

"This separation is not merely a matter of convenience or of governmental mechanism," said the U.S. Supreme Court in O'Donoghue v. United States, 289 U.S. 516 (1933). "Its object is basic and vital ... namely, to preclude a commingling of these essentially different powers of government in the same hands."

In this case, Denis as a lawmaker exercises legislative power over his own employer, the PUC — and, given that power, how can the public really know what actually goes on, behind closed doors, inside that agency?

After all, it is not as though Denis and the PUC are free of areas where such concentration of power can have — or may have already had — real impact on matters of high public importance. Consider the Legislature's passage of the renewable-energy mandates that make Nevada's electricity rates highest of any state in the neighborhood, save California — and determine the funding of the PUC itself. And consider the Legislature's repeated failure to significantly reform the state's Public Employees' Retirement System — where huge taxpayer liabilities directly challenge the self-interest of state and local governmental employees like Denis.

In just the last 10 years, numerous Nevada scandals have involved legislators who had amassed extra power because they also were public-sector employees. The numerous scandals involving Wendell Williams showed clearly that Nevada governmental entities use taxpayer dollars to give legislators high-paying, frequently no-show jobs, precisely because those lawmakers can "open doors" in Carson City that paid lobbyists can't.

Finally, Nevada governmental employees necessarily have a powerful self-interest in issues of governmental power and spending, and that self-interest — during decades when the separation of powers was ignored — has been an undeniable factor in the expansion of both state power and spending.

The branches of government must be separated or government officials — the record shows — will collude for their own benefit, making taxpayers foot the bill.

Q: The separation of powers "protects Nevada's citizens from tyrannical government"? You can't be serious. That's just hyperbole, isn't it?

A: Unfortunately, it's not. Nevada's recent history demonstrates the truth of James Madison's observation that "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." (Emphasis added.)

Certainly, tyrannical government is a matter of degree. But the record, throughout history and all around the world still today, is clear: Exceptions to the separation-of-powers principle diminish the structural protections for the public demonstrated by centuries of experience. After all, corruption is also a form of tyranny, as seen in the Wendell Williams scandals mentioned above.

In some ways, the founders of America and of Nevada are victims of their own success. They did such an excellent job establishing a form of government that preserves liberty and limits government oppression, that many citizens have forgotten just how fragile freedom is and how vigorously we must fight to defend it from even the smallest encroachments.

Q: Isn't it the case that NPRI just wants to hurt Democrats?

A: This lawsuit is about defending the constitution and the constitutional rights of individuals from the transgressions of Republicans as well as Democrats — and of members of any other party. The constitution isn't a partisan document, and constitutional rights are for all citizens, regardless of their party preference. This lawsuit isn't even about left or right, but right and wrong.

Q: How can it be a "citizen legislature" if some citizens, i.e. public employees, aren't allowed to serve in it?

A: No one has a "right" to exercise the coercive power of government over his fellow citizens. Under a republican form of government, power is strictly limited through written constitutions in many ways. One is through limitations on who may hold office. Such limitations are to protect all citizens — by preventing those concentrations of powers that endanger the public, its freedom and its well-being. Essentially, this question asks: "How can it be a ‘citizen legislature' if certain people can't have multiple government jobs?"

As the founders knew, a genuine citizen legislature is a constitutional legislature.

Q: The constitution is a living document, and clearly the state has evolved since the mid-1800s when the constitution was written. Doesn't Article 3, Section 1 need to be modernized?

A: If a "living" constitution means a court can decide that words don't mean what they say — that "any function" doesn't mean "any function" — why have a written constitution at all? Obviously, the lessons of history, from Magna Carta onward, are that, for a people to be free, the powers of government must be bound and limited. Justices who throw out such bedrock principles of constitutional government thus announce themselves to the world as enemies of the people's liberty.

If Nevada's founders thought the constitution was supposed to "evolve" through judges' whims, they would not have included a defined amendment process.

Q: Who will be the judge in the case?

A: This case will initially be heard in the First Judicial District Court, where James T. Russell is the judge.

Q: I agree with you that this issue is vital. What can I do to help?

A: We would greatly appreciate your assistance in publicizing this case and educating Nevada's citizens on the separation of powers and its importance. Sharing this article or this website with all the details on the case on your social networks, like Facebook and Twitter, would also be very helpful.

If you have a list of friends you e-mail, please send them this article or go to NPRI's blog, Write on Nevada, and comment on the numerous posts on the separation-of-powers principle.

If you want to receive the very latest updates on the case, go to http://npri.org/ and sign up for e-mail updates in the top right-hand column.

Thank you for your interest in this case and this essential constitutional principle.

Andy Matthews is president of the Nevada Policy Research Institute. For more information on the case visit http://justice.npri.org/. To learn more about NPRI visit http://npri.org/.

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