NPRI’s litigation center takes aim at long-running constitutional violation
Suit seeks to restore the separation-of-powers principle in Nevada
- Monday, December 12, 2011
It is possible to have legitimate disagreements over the interpretation of parts of Nevada's constitution.
Article 3, Section 1 — the separation-of-powers clause in Nevada's constitution — is not one of them. It 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, except in the cases expressly directed or permitted in this constitution. [Emphasis added.]
The constitution's drafters could not have been clearer in separating the three branches of Nevada's government. Yet despite its unambiguousness and rigidity, government officials routinely ignore this constitutional provision — and have for years.
Today, the most egregious abuse of the separation-of-powers principle is the long-standing practice of employees of the executive or judicial branch serving simultaneously in the state legislature. Clearly unconstitutional, this has nevertheless become commonplace in the Silver State — and Nevada citizens, all the while, have been powerless to stop it.
This and other continuous governmental abuses of the rule of law are what inspired the Nevada Policy Research Institute to create the Center for Justice and Constitutional Litigation, a public-interest law organization that litigates when necessary to protect the fundamental rights of individuals, as set forth in the state and federal constitutions.
Just days ago, CJCL filed a lawsuit in state court aimed at combating the serial violation of the constitution's separation-of-powers provision.
All Nevada citizens are victimized when those entrusted with running the state government violate the constitution they swear to uphold. Yet one individual has been especially aggrieved.
Bill Pojunis is an out-of-work information-technology specialist who is well qualified to work as a computer network technician with the state's Public Utilities Commission. Such a position exists, but is already filled — by state Sen. Mo Denis. It is on Mr. Pojunis' behalf that a CJCL lawsuit has been filed, against Sen. Denis, the state agency that employs him, and the State of Nevada itself, which has countenanced this unconstitutionality.
Sen. Denis, by serving as a state legislator while simultaneously holding a position in the executive branch, is acting in blatant violation of Nevada's constitution. The term "any functions" in Article 3 is what makes Nevada's separation-of-powers provision so strict, and it leaves no room for interpretation. Justice demands that the court system end this clear violation of Nevada's constitution.
The cause of good government demands it, too. The authors of the Nevada Constitution had good reasons to separate the powers of government. It's often tempting to view fidelity to the constitution as important only in an abstract sense, but the negative practical consequences of allowing individuals to serve in multiple branches of government are real — and not only for Mr. Pojunis and other citizens who would like a job that a legislator currently holds illegally.
The legislative branch appropriates funding for all executive- and judicial-branch agencies, and decisions regarding funding levels ought to be guided solely by how much is needed for those agencies to adequately perform their essential functions. The cause of good government is undermined when those who work for executive- and judicial-branch agencies — and thus have a personal stake in how much funding those agencies receive — also get to make those funding decisions. Given that at least nine current members of the Nevada Legislature also hold executive- or judicial-branch jobs, the sharp rise in state spending levels in recent years is hardly surprising.
Still, the most important argument for the separation of powers is much more fundamental. This core principle, and the checks and balances that its application produces, serves as an effective protection against governmental violations of the rights of citizens — and is essential to the preservation of liberty.
As James Madison wrote in Federalist 47: "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."
For far too long, Nevada's citizens have watched helplessly as their politicians have usurped more power for themselves at the expense of the people's rights and interests. It's time for Nevadans to fight back, and to demand that those who are entrusted with the power to write our laws and enforce our laws, are also made to obey our laws.
Restoring the separation of powers is a good place to start.
Andy Matthews is president of the Nevada Policy Research Institute. A version of this commentary first appeared in the Nevada Appeal. For more information on the case visit http://justice.npri.org. To learn more about NPRI visit http://npri.org.