Judge’s ruling would make enforcement of the Separation of Powers impossible

Robert Fellner

Update: On April 21, 2022, the Nevada Supreme Court issued a unanimous opinion that adopted the public-interest exception to standing we argued for in this commentary.

In recognition of the profound harm that would result from denying Nevadans their fundamental right to seek enforcement of the state constitution, the Nevada Supreme Court in 2016 expanded the “standing” requirements necessary to make such a challenge.

Previously, constitutional violations could only be brought if one demonstrated a specific, particularized harm incurred because of the constitutional violation. Failure to do so would result in an immediate dismissal of the challenge, allowing the constitutional violation to continue unchecked.

In the 2016 Schwartz v. Lopez case, however, the state supreme court would formally recognize a “public-importance exception” to this rule, permitting constitutional challenges to be brought, in certain cases, by those who may not have suffered a “special or personal injury.”

Nevada Policy brought our current Separation of Powers lawsuit under this framework. And while District Judge Jim Crockett dismissed our case yesterday by claiming we did not qualify for standing under the Schwartz public-importance exception, he did not provide any rationale for this determination.

The entirety of the court’s ruling related to this issue is reproduced below:

“And the court is not persuaded that Nevada Policy Research Institute comes within the recent Schwartz exception.”

But given that the Separation of Powers is universally recognized as one of the most important principles of government, a natural question to Judge Crockett’s ruling would seem to be, “Well, why not?”

Judge Crockett, of course, did not say. Thus, Nevada Policy will be appealing to the state supreme court to request that the judiciary fulfill its obligation to ensure the constitutional limits imposed upon government are enforced.

It is worth considering, however, what it would mean if the Nevada Supreme Court upholds Judge Crockett’s ruling and allows only those with particularized, specific harms to bring this challenge.

That standard would be all but impossible to meet, as revealed by past attempts to do so.

To qualify for standing under this judge-made rule, one would have to identify a suitable plaintiff to bring the challenge. Thus, to seek to enforce the Separation of Powers against Clark County Deputy District Attorney and State Senator Nicole Cannizzaro, for example, the plaintiff would have to be a licensed attorney in Nevada — as well as someone who would testify that they have personally suffered harm from being unable to apply for Ms. Cannizzaro’s job as a prosecutor.

But that’s not all. When Nevada Policy found a suitable plaintiff in 2017, that case was also dismissed.

The reason? Rule 19(b) of the Nevada Rules of Civil Procedure, the court said, requires that a lawsuit brought against one member of a broader class must name all members of the class.

And because there are so many dual-serving legislators in violation of the Separation of Powers clause, this means there would have to be an equal number of plaintiffs to sue them all. Thus, to sue the current crop of offending dual-service legislators would require finding a plaintiff who is a licensed teacher, a licensed attorney, a qualified communications professional, and at least six others specifically qualified individuals vying for a job currently held by a dual serving legislator.

And, again, it is not merely finding all these uniquely qualified plaintiffs that is required. The plaintiffs must also testify that they have all suffered personal harm stemming from an inability to pursue the jobs being held by the dual-serving legislators — which is, for all practical purposes, an impossible standard to meet. Most people, especially qualified applicants, do not remain perpetually unemployed specifically because one very specific government job is currently unavailable to them.

More importantly, however, is the fact that the constitution’s separation of powers clause wasn’t created to protect individuals from “particularized” and personal harm, such as being rejected for a specific government job. Instead, it is supposed to protect the public from a generalized harm — specifically, the tyranny that results when “legislative and executive powers are united in the same person.”

The exception to standing established by the Nevada Supreme Court in Schwartz was created specifically to address such generalized harms, making it difficult to understand Judge Crockett’s refusal to explain how such an important constitutional violation is, somehow, not of “public importance.”

Checks and balances exist precisely because government will not restrain itself

The lack of judicial intervention on this issue has led to an explosion in the number of dual-serving legislators over the years, and it is easy to see why. Government agencies benefit greatly from having employees who wield legislative power, and political parties are not exactly in the business of booting their own members out of the Legislature.

In this way, the Nevada Supreme Court’s earlier warning about the dangers that would result from ignoring the Separation of Powers has proven sadly prescient:

“Individual freedom and the progress of civilization are attainable, but only if each of the three branches of government conforms to the constitutional principles of the separation of powers. This they will do only if the people so will. The problem in the first instance thus becomes one of popular education in the fundamental principles of free government. Among these principles there is none more significant today than the doctrine of the separation of powers.” Galloway v. Truesdell, 83 Nev. 13, 18-19, 422 P.2d 237, 241 (1967) (emphasis added).

But no matter how passionately the “people so will,” they ultimately cannot enforce the constitution on their own. That is, after all, the exclusive domain of the judiciary.

Nevada Policy intends to ask the Nevada Supreme Court to do just that in our forthcoming appeal.

For more information and to stay updated with the latest developments related to NPRI’s Separation of Powers lawsuit, as well as to access copies of the relevant documents and court filings, please visit NPRI.org/Separation-of-Powers.

Robert Fellner

Robert Fellner

Policy Director

Robert Fellner joined the Nevada Policy in December 2013 and currently serves as Policy Director. Robert has written extensively on the issue of transparency in government. He has also developed and directed Nevada Policy’s public-interest litigation strategy, which led to two landmark victories before the Nevada Supreme Court. The first resulted in a decision that expanded the public’s right to access government records, while the second led to expanded taxpayer standing for constitutional challenges in Nevada.

An expert on government compensation and its impact on taxes, Robert has authored multiple studies on public pay and pensions. He has been published in Business Insider, Forbes.com, the Las Vegas Review-Journal, the Los Angeles Times, the Orange County Register, RealClearPolicy.com, the San Diego Union-Tribune, the Wall Street Journal, the Washington Examiner, ZeroHedge.com and elsewhere.

Robert has lived in Las Vegas since 2005 when he moved to Nevada to become a professional poker player. Robert has had a remarkably successfully poker career including two top 10 World Series of Poker finishes and being ranked #1 in the world at 10/20 Pot-Limit Omaha cash games.

Additionally, his economic analysis on the minimum wage won first place in a 2011 George Mason University essay contest. He also independently organized a successful grassroots media and fundraising effort for a 2012 presidential candidate, before joining the campaign in an official capacity.