Dual Service Unconstitutional; Govt. Can’t Seriously Argue Otherwise

Robert Fellner

The offending dual-serving legislators recently filed their final briefs in response to Nevada Policy’s ongoing separation of powers lawsuit.

Joining them was the legal department of the Legislative Counsel Bureau, which filed a massive 18,000-word brief to support the dual-serving legislators’ argument that the separation of powers provision should be construed to apply only to public officers and not mere public employees.

As a refresher, the full text of Article III, Sec. 1 of the Nevada Constitution is reproduced below:

Article 3. – Distribution of Powers.

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.

It is undisputed that state legislators are “persons charged with the exercise of powers properly belonging to” the legislative branch.

Our argument is therefore quite simple: the plain text of the clause prohibits legislators from exercising “any” non-legislative governmental function.

The offending dual-serving legislators and the LCB (“the government”) respond by claiming that the phrase “any functions” really means “sovereign functions.”

The government next argues that only public officers exercise the “sovereign” functions of the state, whereas mere public employees do not. The government then spends most of its brief talking about the distinction between public officers and employees – a distinction that is only relevant if Article III applies only to sovereign functions, and not something broader than that, such as any and all functions.

The government’s argument obviously fails, and it barely pretends to argue otherwise.

The government’s argument fails because it conflicts with both the plain text of the state constitution and the Nevada Supreme Court’s own binding precedent.

That it conflicts with the text is obvious. If Article III was meant to be limited to only public officers or only sovereign functions, then those words would have been used. Indeed, the Nevada Constitution refers to public officers in more than 20 different sections.

Yet, no such limitation is present in Article III, which instead applies to any “person” rather than merely public officers; and applies to “any function” rather than sovereign functions.

The Nevada Supreme Court, moreover, has repeatedly held that it will not “read language into [a constitutional] provision that it does not contain,” but instead must apply the text as it is written.

The government’s argument therefore fails.

There is, however, an even bigger problem for the government than the plain text of the constitution – binding Nevada Supreme Court precedent.

In the 1967 case of Galloway v. Truesdell, the Nevada Supreme Court provided an exhaustive explanation and construction of the meaning of Article III. 83 Nev. 13, 422 P.2d 237 (1967).

The authority of Galloway is unquestioned. It is the most cited case in Nevada Supreme Court history on this topic. In one of its more recent reaffirmations of the principles and definitions set forth in Galloway, the Nevada Supreme Court described Galloway as having “definitively explained” the meaning of the terms powers and functions as they are used in Article III.

That definitive explanation is set forth below:

In addition to the constitutionally expressed powers and functions of each Department, (the Legislative, the Executive, and the Judicial) each possesses inherent and incidental powers that are properly termed ministerial. Ministerial functions are methods of implementation to accomplish or put into effect the basic function of each Department. No Department could properly function without the inherent ministerial functions.

[I]t is in the area of inherent ministerial powers and functions that prohibited encroachments upon the basic powers of a Department most frequently occur. All Departments must be constantly alert to prevent such prohibited encroachments lest our fundamental system of governmental division of powers be eroded. To permit even one seemingly harmless prohibited encroachment and adopt an indifferent attitude could lead to very destructive results.

Thus, in the context of Article III, we know that functions include those “incidental” and “ministerial” functions that are used to put into effect the basic function of each one of the three great branches of government.

In other words, the government’s current argument that “any functions” means only “sovereign” functions directly contradicts binding, Nevada Supreme Court precedent, and therefore fails.

In what is as close to an admission of defeat as one could ever hope to see in the adversarial legal process, the government responds to the above with silence.

In a case about the meaning and application of Article III, the government does not mention Galloway at all – notwithstanding the fact that it is the most authoritative and frequently cited state supreme court decision interpreting and explaining the terms at issue in this case.

Their silence confirms that they have no answer to the above, and the best they can hope for is to pretend that Galloway and its progeny do not exist. This is generally not a winning legal strategy, however, as the Nevada Supreme Court cannot ignore its binding precedent, but instead must faithfully apply it.

And, as shown below, if the Court does apply their own binding precedent, then the executive branch employees responsible for helping to carry out and administer the laws of this state will no longer be allowed to simultaneously serve as state legislators.

The Nevada Supreme Court has already held that executive branch functions include those tasks that are reasonably necessary to help carry out the laws of this state.

Our argument is that state and local government employees – in this case that includes public-school teachers and a public defender – necessarily exercise executive branch functions as part of their job-related duties.

As discussed above, the Nevada Supreme Court has already broadly defined Article III functions to include even those “ministerial” and “incidental” functions that are used to “accomplish … the basic function of each Department.”

Thus, to determine whether public employees exercise executive branch functions requires identifying the “basic function” of the executive power. Thankfully, the Nevada Supreme Court has provided an answer to this question and has already held that the “executive power extends to the carrying out and enforcing the laws enacted by the Legislature.”

In one of the countless reaffirmations of this definition, the Nevada Supreme Court described the executive power as including the responsibility “to administrate” the laws enacted by the legislature.

This is consistent with the definition adopted by state supreme courts nationwide.

The legislature has enacted an extensive series of laws providing for a statewide system of public education. To carry out and administer those public education laws, the legislature created county school districts, including the Clark County School District.

Thus, public school teachers necessarily exercise executive branch functions because their job-related duties are how the legislature’s education laws are carried out and put into effect.

The same applies for public defenders, whose job-related duties are necessary to carry out the state system of public indigent defense services, as well as to carry out several expressly imposed statutory duties related to that overall purpose.

Accordingly, Article III forbids state legislators from simultaneously serving as public school teachers or public defenders, as both roles entail the exercise of the executive branch function of helping to carry out and administer the education and public defense laws of this state, respectively.

While the government has essentially confirmed that it has no legal argument to address the above, that doesn’t mean that the legal case is over.

Nevada Policy will file one more brief on Sept. 14, 2023, at which point the briefing will be complete. It is very likely that the court will then call for oral arguments in this case, which would likely occur late this year or early next year.

As always, you can receive the latest updates by visiting the Nevada Policy’s Separation of Powers Case Timeline page.

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.