Nevada think tank to appeal rejection of separation of powers lawsuit

CARSON CITY — A conservative Nevada think tank plans to challenge a lower court’s rejection of its separation of powers lawsuit against a state senator.

The Nevada Policy Research Institute announced Monday that it will appeal to the Nevada Supreme Court a Carson City District Court decision that tossed out the lawsuit against state Sen. Mo Denis, D-Las Vegas.

Joseph Becker, the institute’s chief legal officer, said that there are six other legislators with situations similar to Denis’ case and that the separation of powers doctrine is “fundamental in our system of government,” so an appeal is essential.

The Las Vegas-based group filed a lawsuit in November that maintained Denis had to quit his full-time job as a computer technician with the state Public Utilities Commission if he wanted to keep his part-time legislative job.

The lawsuit cited the state constitution’s requirement that people serving in one branch of government cannot exercise any power in another branch. As a senator, Denis is a member of the legislative branch of government, and the PUC is an executive branch state agency.

Within weeks after the lawsuit was filed, Denis quit his PUC job — which he had held more than a decade before he became a legislator in 2004 — and took a job with Lunas Construction in Southern Nevada.

District Judge James T. Russell ruled Friday the case against Denis was moot because the controversy on which the case was filed no longer was present.

He referred to a state Supreme Court decision that “the duty of every judicial tribunal is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions or to declare principles of law which cannot affect the matter in issue before it.”

But Becker said the Supreme Court can make “public interest” exceptions in such major cases. He said that there are at least 14 conflicting attorney general opinions on the separation of powers doctrine.

He said there are six legislators who work in jobs that put them in conflict with the doctrine. He identified them as Assemblyman Marcus Conklin, D-Las Vegas, who works for the Nevada System of Higher Education; Assemblyman Kelvin Atkinson, D-North Las Vegas, and Assemblyman Jason Frierson, D-Las Vegas, both Clark County employees; and Assemblyman Scott Hammond, R-Las Vegas, Assemblywoman Melissa Woodbury, R-Las Vegas, and Assemblywoman Olivia Diaz, D-North Las Vegas, all Clark County School District employees.

“We are obviously pleased with Judge Russell’s decision, and we will continue to fight for my rights on this issue,” said Denis, the leader of the Senate Democratic Caucus and likely the party’s Senate leader at the 2013 legislative session.

In an interview last week, Denis said William Pojunis, the man on which the Nevada Policy Research Institute based its case, did not even apply for the PUC job he vacated. The institute had alleged that Denis’ continued PUC employment prevented Pojunis, who it said had 25 years of computer technician experience, from applying for the job.

Pojunis, according to several stories, was a past spokesman for the Clark County Republican Party and now for the state Libertarian Party.

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3901.