Week in Review: Powers still need to be separated

Andy Matthews


On Tuesday, the Nevada Supreme Court made a decision in our three-year-old separation-of-powers case.

As you may recall, in November 2011, NPRI’s Center for Justice and Constitutional Litigation filed a lawsuit against Sen. Mo Denis for holding employment in the executive branch, while also serving as a senator in the legislative branch.

Denis’ simultaneous employment in both the legislative and executive branches violated Article 3, Section 1 of Nevada’s Constitution, which clearly states that the branches of government must be separate:

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. [Emphasis added.]

This prohibition is one of the key structural provisions that protect our liberty and prevent abuse of government power. Thinkers and leaders including James Madison, Thomas Jefferson and George Washington have fought for this principle, because they recognized that the separation of powers is necessary to prevent tyranny.

We created our litigation center to defend essential constitutional principles like this one, which is why our separation-of-powers lawsuit was so important.

Three years ago, on the day NPRI served Denis with the lawsuit, he resigned his executive branch job. This was a de facto acknowledgment that he had been violating the Constitution, and rather than fight a losing battle in court, he stopped violating the Constitution.

That was a victory in a battle — one legislator stopped violating the Constitution — but our goal is to win the war by getting a Supreme Court precedent that prevents similar violations from occurring ever again.

On Tuesday, the Supreme Court failed even to address the public-interest exception to the mootness doctrine we had cited in our appeal and ruled instead that Denis’ resignation mooted the lawsuit.

It’s important to note that the Supreme Court didn’t rule on the constitutional issue at the heart of this case. Rather, the Court simply affirmed the district court’s decision to dismiss the case on mootness grounds, given the fact of Denis’ resignation.

While this ruling is disappointing, because it means another case will have to be brought before the court again, the decision does create the opportunity to educate Nevada citizens on this important constitutional protection held dear by conservatives and liberals: separation of powers.

Know for certain that NPRI’s Center for Justice and Constitutional Litigation will remain vigilant in protecting your constitutional rights through our current cases and the ones to come.

Andy Matthews
NPRI President

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.