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.
That the judiciary must enforce the constitutional rules imposed upon government, and that their failure to do so would lead to tyranny, has been understood since before the founding of this state. Marbury v. Madison, 5 U.S. 137, 176 (1803).
Under our co-equal, tripartite form of government, it is the responsibility of the Nevada Supreme Court “to interpret the Constitution and to resolve disputes arising under it.” Monier v. Gallen, 122 N.H. 474, 476 (N.H. 1982).
Yet, when it comes to enforcing Nevada’s constitutional separation of powers doctrine, state courts have repeatedly failed to perform this vital task. Rather than addressing the constitutional violation, the courts have instead so far dismissed all challenges by asserting that only those who have suffered a unique and specific harm — as opposed to the general harm caused to all Nevadans when their government violates the Constitution — are entitled to bring a lawsuit. There is nothing in the Nevada Constitution which supports this judge-made rule, which instead finds its origin in federal case law.
As a threshold matter, federal decisions regarding standing “are not binding upon” state supreme courts, which are, instead, “free to dispense with the requirement for injury where the public interest so demands.” State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062, 1999 Ohio 123 (1999).
As the authoritative legal encyclopedia, American Jurisprudence, explains: “Unlike the federal courts, state courts are not bound by constitutional strictures on standing; with state courts standing is a self-imposed rule of restraint.”
Thus, the claim that the Nevada Supreme Court cannot address the ongoing violation of Nevada’s Constitution due to a perceived lack of standing is without merit, a fact recognized by numerous other state supreme courts nationwide.
As the Wyoming Supreme Court previously held, state supreme courts can adopt “a more expansive or relaxed definition of standing when a matter of great public interest or importance is at stake.” Jolley v. State Loan and Inv. Bd., 38 P.3d 1073, 1077 (Wyo. 2002).
While this public importance test is rarely granted, the Iowa Supreme Court explained that it is designed precisely for cases like these, “when the issue is of utmost importance and the constitutional protections are most needed.” Godfrey v. State, 752 N.W.2d 413, 427 (Iowa 2008).
Ironically, it was the Nevada Supreme Court that first warned of the devastating consequences that would result if the separation of powers doctrine was not applied with a “fullness of conception…involving all of the elements of its meanings and correlations.” Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967). The Court further explained that the very attainment of freedom itself required vigorous enforcement of the separation of powers doctrine. Id.
Unfortunately, a total lack of enforcement in the nearly half century that has passed since Galloway is largely responsible for enabling those same abuses the Court once seemed so committed to preventing. Confidence in the rule of law is undermined as, despite the plain text of the constitutional separation of powers prohibition, legislators nonetheless continue to engage in the prohibited act of dual service.
Famously, former Assemblyman and Las Vegas city employee Wendell Williams in 2003 openly admitted to the conflict that is ordinarily merely implied with legislative dual service when he claimed to have voted for a particular piece of legislation that would benefit his government employer in exchange for a pay raise and promotion. The scandal was so brazen that it prompted then-Nevada Attorney General Brian Sandoval to declare legislative dual service unconstitutional in an official advisory opinion. That opinion would form the basis of then-Secretary of State Dean Heller’s lawsuit the following year.
In Heller, the Nevada Supreme Court declined to address the issue of dual service, but the Court did offer the following guidance for how to bring an appropriate challenge:
declaratory relief, possibly coupled with a request for injunctive relief, could be sought against other executive branch employees. The party with the clearest standing to bring the quo warranto action would be the attorney general and declaratory relief could be sought by someone with a ‘‘legally protectible interest,” such as a person seeking the executive branch position held by the legislator. Individual legislators would need to be named as either quo warranto respondents or declaratory relief defendants. — Secretary of State v. Nevada State Legislature (July 14, 2004, 120 Nev., Advance Opinion 51).
Nearly two decades later, this issue has still failed to receive substantive review from the Nevada Supreme Court, even as legislative dual service and the abuses associated with it have reached unprecedented heights.
Despite the dozens of viable cases that have presented themselves since Heller, no Attorney General has ever brought a quo warranto action. That dual service is a bipartisan affair, and that the AG is an elected politician that is likely uninterested in harming members of his or her own party, almost certainly explains this inaction. In other words, any Attorney General bringing a quo warranto action on the grounds of legislative dual service runs the risk of harming his fellow party members, given the proliferation of the practice on both sides of the political aisle.
But, as the South Carolina Supreme Court explained, citizens “must be afforded access to the judicial process to address alleged injustices,” and, clearly, relying on a politician to act against the best interest of his fellow party members has all but denied Nevadans that access. Sloan v. Sanford, 357 S.C. 431, 434, 593 S.E.2d 470, 472 (2004).
With the Attorney General unable or unwilling to perform this role, the only avenue Heller afforded Nevadans to vindicate this most fundamental constitutional right is through a private action brought by someone with a “legally protectable interest.”
After an exhaustive search, NPRI finally located just such a plaintiff in 2011 and initiated a lawsuit to properly bring this issue before the state supreme court so that Nevadans may finally be provided with a resolution on the meaning and application of the separation of powers doctrine — which the Nevada Supreme Court has consistently affirmed is “perhaps the most important single principle of government” protecting and safeguarding Nevadans’ liberties.
Yet, after the offending dual-serving legislator resigned his government job, the Nevada Supreme Court declined to rule on the issue, claiming the matter was moot, despite the prevalence of numerous other dual-serving legislators at that time.
It would take 7 years before another suitable plaintiff was identified. In that case, the district court dismissed the case on the grounds that, pursuant to Nevada Rules of Civil Procedure 19, joinder of all the numerous other legislators engaging in dual employment was both necessary and unable to be accomplished by a single plaintiff.
The district court in the instant case dismissed on similar grounds. As evidenced by the fact that only 2 suitable plaintiffs have been identified since Heller, the requirement to identify an equal number of qualified, personally harmed plaintiffs to match all dual-serving legislators has transformed what was presented as an avenue for justice into nothing more than a mirage.
As the Nevada Supreme Court so emphatically stated in Galloway, this issue is of such profound importance as to require vigorous enforcement. Yet, Nevadans are helpless to enforce the constitutional rules imposed upon government; only the Nevada Supreme Court can do that. It is precisely for these kinds of “exceptional circumstances…in cases involving issues of great public importance that are likely to recur,” that a relaxed definition of standing is warranted, according to the Arizona Supreme Court. Bennett v. Napolitano, 206 Ariz. 520, 81 P.3d 311 (2003).
The issue cries out for a resolution on multiple fronts. One need not be a constitutional scholar to determine that allowing a prosecutor to simultaneously act as chief lawmaker runs afoul of the separation of powers doctrine. That this clearly prohibited practice can continue, with Nevadans never even being afforded the opportunity for meaningful judicial review, undermines the faith and legitimacy of our very system of government.
That there is an inseparable conflict to legislative dual service has previously been acknowledged by all involved. Assemblyman and city employee Wendell Williams admitted that he used his power as a legislator to advance the interests of the government agency he worked for, rather than serving the public. A city councilwoman, meanwhile, acknowledged that governments sought to hire legislators because of the added “value” they provide as superlobbyists. Then-Mayor Oscar Goodman explained that, to his understanding, the whole point of hiring a legislator on the city payroll was to ensure that “you have somebody up there who was looking out for the City’s best interest.”
After the Nevada Supreme Court declined to exercise its discretion to address this issue in the first lawsuit brought by NPRI in 2011, the abuses associated with legislative dual service reached a level that appears unprecedented in the history of American government. Specifically, in both the 2019 and 2021 legislative session, the same person charged with the enforcing the law as county prosecutor also wielded the power of supreme lawmaker as Senate Majority Leader. There is no conception of the separation of powers that can tolerate such an outcome. Indeed, other than judicial inaction, there exists no persuasive authority whatsoever that even purports to condone such plainly unconstitutional conduct.
As the New Mexico Supreme Court previously held, cases like these, which involve “clear threats to the essential nature of state government,” require an engaged judiciary, rather than one that allows the threat to continue just to comply with the non-binding and non-applicable federal rules of standing. State ex rel. Sandel v. New Mexico Pub. Util. Comm’n, 1999-NMSC-019.
Private jobs don’t entail the lawful power to kill
The conflict-of-interest associated with allowing those who enforce the law to also write the law was most obvious in the proceedings surrounding a bill pertaining to the ultimate State power: the death penalty.
Assembly Bill 395 would have abolished the death penalty in Nevada. Clark County DA Steve Wolfson fiercely opposed the proposed legislation and testified in support of maintaining the death penalty. A report from the Reno Gazette-Journal described the legislative process surrounding AB 395 thusly:
“But AB 395 is yet to be considered in the Senate, where its fate will depend on a pair of legislators employed by one of the state’s most prominent death penalty proponents.”
These are, to put it mildly, not normal conflicts of interest inherent to a part-time, citizen-run legislature. The problem with legislative dual service rests upon the fundamental difference between government and non-governmental actors. When a private business raises its prices, Nevadans are under no obligation to pay them. When the government increases its fees or taxes, that money is forcibly taken from Nevadans without their consent. The only thing justifying such coercion in a free society is the notion that “in a representative government all powers of government belong ultimately to the people in their sovereign corporate capacity,” and that the government has only those powers authorized by the constitution and is constrained by the rules imposed upon them by the constitution. Saxby v. Sonnemann, 318 Ill. 600, 604 (Ill. 1925).
Only the Nevada Supreme Court can ensure Nevadans live under a form of government that is in accordance with the state constitution, which is precisely why inapplicable federal guidelines about standing should not prevent the Court from performing such a vital task. This fact is also recognized by the Colorado Supreme Court, which granted standing to plaintiffs not because of any unique individualized harm, but “because of their interest in ensuring that the organization of government conforms to the constitution of this state.” Dodge v. Department of Social Services, 600 P.2d 70, 198 Colo. 379 (1979).
That the Nevada Supreme Court has not been able to provide judicial clarity on an issue of such profound public importance in the 17 years since Heller suggests that the roadmap provided therein was unduly narrow.
In the 2016 case of Schwartz v. Lopez, the Nevada Supreme Court recognized the need for a relaxed standard of standing for issues of statewide public importance, at least when it pertains to issues relating to government expenditures. But if an inappropriate use of tax dollars warrants a public-interest exception to standing, so too should constitutional violations that threaten to destroy the very essence of our system of representative government.
Schwartz stood for the proposition that it is improper for the judiciary to deny Nevadans relief on matters of statewide public importance simply because of the difficulties associated with the traditional rules of standing. Allowing Nevadans to be ruled by those who wield both the legislative and executive powers is no less tyrannical simply because it occurred independently of any particular legislative appropriation.
The Nevada Supreme Court should follow the logic of their ruling in Schwartz, as well as the reasoning of the numerous other state supreme courts cited above, and exercise its discretion to provide standing for cases like the instant matter, wherein “the governmental action would otherwise go unchallenged,” “judicial relief is appropriate,” and “no other persons are better situated to assert the claim.” Consumer Party of Pa. v. Commonwealth, 507 A.2d 323, 329 (Pa. 1986).
For more information on Nevada Policy’s ongoing Separation of Powers lawsuit, please visit https://www.npri.org/separation-of-powers/