NPRI plans to appeal, comments on judge’s decision to dismiss separation-of-powers lawsuit

Victor Joecks

Earlier today, NPRI learned that First Judicial District Court Judge James T. Russell has dismissed Pojunis v. State of Nevada, et al. as mooted by Sen. Denis’ resignation. In response, Joseph Becker, chief legal officer and director of NPRI’s Center for Justice and Constitutional Litigation, released the following comments:

The separation-of-powers clause in Nevada’s constitution is perfectly clear – a sitting state legislator is not allowed to exercise any functions in the executive or judicial branch of state government. This principle is foundational to Nevada’s government, and that’s why we strongly oppose the court’s decision to dismiss Pojunis v. State of Nevada, et al.

Although Sen. Mo Denis resigned from his executive-branch employment within hours of being served with CJCL’s lawsuit – a de facto admission on the merits of the case – it is hard to imagine a case that better satisfies the “Public Interest” exception to the mootness doctrine than this one.

While the court acknowledged that there are exceptions to the mootness doctrine, it held that the “Public Interest” exception was too limited to include this case. However, with at least 14 conflicting attorney general’s opinions on this issue and no fewer than six current legislators – Assemblyman Marcus Conklin, Nevada System of Higher Education; Assemblyman Kelvin Atkinson, Clark County; Assemblywoman Olivia Diaz, Clark County School District; Assemblyman Jason Frierson, Clark County; Assemblyman Scott Hammond, Clark County School District; and Assemblywoman Melissa Woodbury, Clark County School District – also violating Article 3, Section 1, this case is the poster child for the “Public Interest” exception.

As the Nevada Supreme Court has written, the separation of powers “is probably the most important single principle of government declaring and guaranteeing the liberties of the people,” and “[t]he separation of powers; the independence of one branch from the others; the requirement that one department cannot exercise the powers of the other two is fundamental in our system of government.”

Even Governor Brian Sandoval, chief executive of the State of Nevada, which is also a named defendant in the lawsuit, has stated that this lawsuit “brings up a very important constitutional issue.” Further, in regard to the separation-of-powers issue raised by this lawsuit, Governor Sandoval has implored the Supreme Court to “[s]ettle it once and for all.”

With those comments in mind and agreeing with the Nevada Supreme Court that the separation of powers is “fundamental in our system of government,” we plan on appealing this dismissal to the Nevada Supreme Court.