Courts should enforce separation of powers

For nearly three decades, the Nevada judiciary has turned a blind eye as state lawmakers openly flouted an integral part of the state’s founding document. It now has yet another opportunity to right that wrong.

Last week, the Nevada Policy Research Institute — a free-market think tank in Las Vegas — filed a lawsuit arguing that nine state lawmakers are serving in Carson City in violation of the Nevada Constitution’s separation of powers clause. The offenders, two Republicans and seven Democrats, have one thing in common: They’re all public employees.

The clear language in Article 3, Section 1 of the state constitution mandates that the state government shall consist of three branches — the executive, legislative and judicial — “and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, apertaining to either of the others, except in cases expressly directed or permitted in this constitution.”

This passage is designed to do more than simply limit potential conflicts of interest — although it helps accomplish that vital end. Instead, it is based directly on the Founders’ concerns that consolidated power was a hallmark of despotism and that the levers of the state, through a system of checks and balances, should be in as many different hands as possible to safeguard liberty and to ensure a just republic.

“The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective,” James Madison noted in the Federalist No. 47, “may justly be pronounced the very definition of tyranny.”

Should a judge who is charged with interpreting the law also be allowed to make the law simultaneously as a legislator? Should a member of the judiciary who must mete out punishment to violators of the law also be involved in enforcing those very same laws as a police officer? Such arrangements would be dangerous and undermine vital checks and balances.

Yet those currently serving in the Nevada Legislature include two county prosecutors, two public defenders, three local schoolteachers, one university system employee and one employee of the Regional Transportation Commission. All are employed by the executive branch and work to carry out policy as set by the Legislature.

Nor is this unusual. At one point years ago as many as two dozen of the 63 lawmakers sent to Carson City also moonlighted in a job that carried a government paycheck.

This obvious inconsistency has been challenged in court over the years but to little avail thanks to issues of legal “standing” or other technicalities. The offenders and their defenders have offered all manner of creative excuses to justify their contempt for Article 3, Section 1. Former UNLV professor Dina Titus, who served in the state Senate before moving on to the U.S. House, even claimed that the state university system was actually a “fourth branch” of government that wasn’t covered by the separation of powers clause. Others have attempted to twist the meaning of the “exercise of powers,” claiming it applies only to supervisors or managers.

In 2004, Brian Sandoval issued an opinion as Nevada attorney general holding that state workers were prohibited from serving in the Legislature but local government employees were not. The distinction is one without a difference given that it would seemingly sanction a District Court judge to also serve in Carson City. How does that work to limit the accumulation of power?

The closest the Nevada Supreme Court has come to the issue was a 2004 decision holding that Legislature has the sole power to determine the qualifications of its members. But surely that discretion must be accomplished within the bounds of the state constitution itself. The decision did, however, allow for lawsuits challenging the legality of specific lawmakers to serve.

The NPRI legal action does precisely that. It deserves to succeed. The separation of powers clause represents a vital bulwark against tyranny. If lawmakers don’t like it, they are free to initiate a change. In the meantime, though, it’s well past time that the state judiciary stopped protecting legislative scofflaws who arrogantly believe they’re exempt from the plain language of the state constitution.