Nevada Supreme Court tosses separation-of-powers case

Remember that one time the Nevada Policy Research Institute sued state Sen. Mo Denis, contending that as a state employee, he was constitutionally barred from holding an elected office in the legislative branch of government? Yeah, that’s over.

The Nevada Supreme Court on Tuesday ruled the case was moot, since Denis long ago resigned from his state government job and took employment in the private sector. But the ruling also offers some hints as to how it might rule in the future on similar cases.

Quick background: NPRI sued Denis, who at the time was an IT employee for the Public Utilities Commission of Nevada, contending that the state constitution’s separation of powers doctrine bans people who work for the state from also serving as elected officials.

(That section reads: “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.”)

Denis’ leaving state employment — obviously a move to moot the lawsuit — didn’t stop NPRI from pressing its case; the think tank’s Center for Justice and Constitutional Litigation argued to the District Court that there were important issues of public policy to be addressed by the litigation, and, in any event, Denis should be forced to repay salary allegedly paid out in violation of the constitution. But the District Court dismissed the case, and NPRI appealed to the state Supreme Court.

But the Supreme Court said no to both arguments.

“[The plaintiff] lacks standing to request the disgorgement of benefits paid and owed to Denis because, even assuming that taxpayer standing is available in Nevada, his request would unwind the state’s previous expenditures, relief not available in this setting,” the unanimous, three-page ruling reads. Justices cite the Texas case of Dewhurst v. Hendee, which held that “…it is well-established that taxpayers have standing only to challenge prospective state expenditures, but do not have standing to complain of public funds that have already been spent.”

The issue of Denis’ dual-employment wasn’t directly addressed by the court, which wrote, “As to [the plaintiff’s] request to enjoin Denis’ continued employment with the PUC, if in fact [the plaintiff] has standing to request such relief in the first instance, his request was rendered moot when Denis resigned.”

I’ve written that the court should address the question in the main, since there are varying attorney general opinions on the subject, and public employees of the state (and even local government) deserve guidance on the issue. (I also noted that it was unlikely the court would give such guidance after Denis’ resignation.) But the court does suggest by its language that would-be plaintiffs would have to overcome the hurdle of standing before a lawsuit could commence. Standing requires a person to identify a particularized injury suffered, and a remedy within the jurisdiction of a court. Justices here seem to be indicating that would be an open question in future lawsuits on the same issue.

For his part, Denis called the lawsuit frivolous and said he was glad it was over.

“Yesterday, the Nevada Supreme Court dismissed the frivolous lawsuit brought by NPRI against me in late 2012, regarding my previous employment as a computer technician with the Public Utilities Commission. In doing so, the Court affirmed the district court’s decision to toss out the case, for which that court didn’t even bother to hold a hearing.

“The Supreme Court agreed not only that the suit and the appeal were pointles‎s, but that the manufactured constitutional issue was bogus as well. Ideologically-based suits, brought by NPRI on behalf of a frustrated office-seeker, just waste the time of the judiciary and distract from the real, pressing issues facing our state. I hope that NPRI can decide, in the future, to direct their energies towards constructive endeavors that will advance important public policy matters like educational opportunity for all Nevadans and fairness for working families. This lawsuit, dead on its arrival, was not one of them, and I am glad the Supreme Court put this to rest.”

But the court did no such thing: Even the most liberal reading of the ruling shows the court did not hold that “the manufactured constitutional issue was bogus” or that it has been put to rest. It concluded that Denis’ resignation — and why, pray tell, would he resign if the lawsuit were, in fact, frivolous? — made the issue moot in this particular instance. How the court would rule on the issue in the main in the future, in another case, is an open question.

NPRI put out a statement in reaction as well. Here’s a portion of it, quoting attorney Joseph Becker:

“It is unfortunate that the Court failed to address the ‘substantial public interest’ exception to the mootness doctrine when ruling in the Pojunis v. State of Nevada, et al case.

“Today’s decision focused only on the mootness issue, rather than on the merits of the separation-of-powers issue raised by the case. That issue is important because of the frequency with which Nevada politicians have exploited the court’s silence to amass personal — yet unconstitutional — power by simultaneously holding positions in separate branches and because of a long history of conflicting attorney general advisory opinions on this issue.

“While Sen. Denis’ resignation from his executive-branch job with the Public Utilities Commission was a de facto admission that he had been violating the separation-of-powers clause, Nevadans would have benefitted [sic] from a clear Supreme Court ruling affirming this key constitutional principle.”

Actually, Denis resignation, while obviously motivated by the lawsuit and perhaps a desire to avoid a ruling on the issue in the main, is not a de facto admission of anything. But Becker is correct that the state and its residents would have benefited from a clear ruling on the separation of powers principle.

Maybe next time?