Separation of Powers Update: Oral Arguments Recap

Robert Fellner

Nevada Policy has spent more than a decade seeking judicial enforcement of our state’s constitutional separation of powers doctrine. The doctrine bars those tasked with enforcing the law—like country prosecutors—from simultaneously wielding the lawmaking power as state legislators.

That the Nevada Constitution prohibits legislative dual service is made clear by the Nevada Supreme Court’s own binding precedent, which in 1967 held that even ministerial functions like processing marriage certificates—something now done by local county clerks—implicated the separation of powers doctrine. That ruling held unconstitutional a statute requiring the judiciary to perform such non-judicial functions, citing separation of powers grounds. The ruling makes clear that the same analysis would apply to legislators who are similarly barred from exercising non-legislative functions. Needless to say, if the processing of marriage certificates is a task sufficient to implicate the separation of powers doctrine, so too should be the wielding of the prosecutorial power and all that entails.

Unfortunately, even as numerous other state supreme courts[1] have enforced their respective separation of powers clauses, the Nevada judiciary has so far refused to do so.

During yesterday’s oral arguments, Justice Stiglich observed that since only Nevada Policy has brought these challenges over the past decade, wouldn’t that suggest a lack of interest in this issue amongst ordinary Nevadans?

On the contrary, this issue is of such significance to many Nevadans that then-Secretary of State Dean Heller brought a lawsuit in 2004 seeking enforcement. The state supreme court refused to consider the merits of that challenge however, and dismissed the case for lack of standing, among other reasons.

Since then, hundreds, if not thousands, of Nevadans have reached out to us about this issue. To understand why so few have brought their own challenges, one needs only consider the process the Court has put forth. Unlike numerous other states that allow taxpayers to file a lawsuit “because of their interest in ensuring that the organization of government conforms to the constitution,” the Nevada Supreme Court only permits those who can claim a particularized, specific injury to do so. Dodge v. Department of Social Services, 600 P.2d 70, 198 Colo. 379 (1979).

Specifically, the Nevada Supreme Court cited someone who was personally harmed by being unable to obtain the job held by the dual-serving legislator as an example of someone who could bring this challenge. But how many out-of-work people do you know who are able and willing to spend tens of thousands of dollars, if not more, on a lawsuit that might help them get a job? And even that is overstating it, because the only “relief” available in that case is a job opening, rather than a job placement. In other words, even if there were Nevadans sitting around perpetually unemployed because they wanted one specific job currently held by a dual-serving legislator, and they sued and won, the only result would be the opportunity to apply for the job, with no guarantee of receiving it. All for the low, low price of up to $250,000 in legal fees!

In other words, there are no lawsuits from ordinary citizens on this issue because of the barriers and obstacles the court itself has created for them.

That ordinary citizens are unwilling to risk enormous sums of money on legal efforts that have no guarantee of success is not an indication that Nevadans have abandoned their rights to live under a government in accordance with the state constitution. On the contrary, it speaks to the harm that results when the judiciary fails to perform its fundamental and vital task, as best articulated by United States Supreme Court Chief Justice John Marshall:

To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed. Marbury v. Madison, 5 U.S. 137, 176 (1803).

Removing these limits through judicial inaction is no less corrosive to a free society than doing so overtly. The Nevada Supreme Court should exercise its discretion to hear this case, and thereafter apply its own, binding precedent to finally resolve this matter once and for all.


For more information on Nevada Policy’s ongoing Separation of Powers lawsuit, please visit https://www.npri.org/separation-of-powers/

[1] A non-exhaustive list includes Indiana, Oregon, Nebraska, Mississippi, Louisiana, New Mexico, Montana and Colorado.
Robert Fellner

Robert Fellner

Vice President & Director of Policy

Robert Fellner joined the Nevada Policy Research Institute in December 2013 and currently serves as the Institute’s Vice President and Director of Policy. Robert has written extensively on the issue of transparency in government. He has also conducted legal research and assisted in crafting legal arguments for numerous public records-related lawsuits, including one which prevailed at the Nevada Supreme Court, resulting in a landmark decision that protected and expanded Nevadans’ rights to access and inspect government records.

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.