Reversible error | STEVE SEBELIUS
Talk about fruit of the poisonous tree!
On page 8 of her 28-page decision in Nevada’s latest separation of powers case, District Court Judge Jessica Peterson notes: “While many states have specific constitutional or statutory provisions against public dual employment, Nevada is not one of those states.”
Except for one thing: it is.
Article 3, Section 1 (1) of the Nevada Constitution states: “The Government of the State of Nevada shall be divided into three separate departments – Legislative, – Executive, and Judicial; and no person shall be charged with the exercise of the powers appertaining properly one of these departments shall not exercise any function belonging to any of the others, except as expressly directed or permitted in this constitution.”
You can argue over the meaning of those words, but you can’t argue that the provision doesn’t exist, although that seems to be the favored rubric of interpretation of that particular passage in Nevada.
From that initial mistake follows a lengthy analysis of whether the constitution actually means what it appears to say. Peterson’s analysis acknowledges that some jobs are “incompatible” with legislative service: “Therefore, service in the Legislature while concurrently employed as a member of the district attorney’s office is incompatible under the common law doctrine.”
But she thinks other jobs — working in a county school district, working for a state college or working as a deputy public defender — are not incompatible, based on the common law.
This property is suitable for two former deputy district attorneys/state senators who left their jobs after the lawsuit was filed in 2020 by the Nevada Institute for Policy Research. It seems they may have suspected that their role in writing laws and then enforcing those same laws was too much, even for Nevada.
The separation of powers provision is widely misunderstood; opinions from the Attorney General, the Legislative Council Bureau and even the courts have been conflicting and inconsistent.
Some think that the concept of dual service is wrong because it creates conflicts of interest, which it does. We would all like the ability to be able to vote for a pay rise ourselves.
Some think the concept of dual service is wrong because it changes the power dynamic, which it does. We’d all like the ability to be our own boss’s boss, even for four months.
Some think the concept of dual services is wrong because it amounts to “double dipping,” which it does. We’d all like to supplement our take home pay, even with the small pay that legislators are given.
But none of these things are why dual serving is off limits in Nevada. It is not allowed because the drafters of the state constitution did not want the powers of government to be concentrated in the same hands. The people who write the laws, enforce the laws, and interpret the laws do not have to be the same individuals.
People will object on grounds of justice: Why should policemen, teachers, firefighters, prosecutors, university professors, building inspectors, and county hospital nurses be barred from serving in the Legislature, when private sector workers are not? Even worse, why should lawyers whose firms hire lobbyists to persuade lawmakers be able to serve when a county librarian is not allowed to run?
The answer is simple, if unsatisfying: because private sector workers don’t perform the functions of a branch of government, but people in those other jobs do. (Regardless of Peterson’s conclusions, ask yourself this: Is it the function of the executive branch to educate children and college students? Is it the function to provide constitutionally required legal representation to criminal defendants?)
Of course it is.
Some may take pains to suggest that local government employees are not functioning in the executive branch, but Nevada has long adhered to the Dillon Rule, named after Iowa Supreme Court Justice John Forrest Dillon, who opined that “municipal corporations owe their origin and derive their powers and rights entirely from the legislature. It gives them the breath of life, without which they cannot exist.”
This is another rule that many in Nevada like to pretend doesn’t exist, depending on whether they are serving in state or local government.
The Nevada Supreme Court faces a decision: Does the state constitution mean what it seems to clearly say, that government employees exercising executive functions are prohibited from exercising legislative power? They can begin by accepting that Article 3, Section 1(1) does exist.
Contact Steve Sebelius at [email protected] or 702-383-0253. Follow @SteveSebelius on Twitter.