EDITORIAL: Carson City Judge single-handedly rewrites state constitutional clause

A Carson City judge wins the gold medal for linguistic gymnastics in his decision affirming a gubernatorial appointment that violates the clear language of the Nevada Constitution. But what are words for, anyway?

In January, newly elected Gov. Joe Lombardo named James Settelmeyer, a former Republican lawmaker who retired in November, as director of the state Department of Conservation and Natural Resources. His selection outraged green activists who complained he wasn’t sufficiently panicked about global warming and favored less restrictive policies for public land use.

But the opposition went beyond the political. Article 4, Section 8 of the state constitution holds that no Nevada lawmaker “shall, during the term for which he shall have been elected, nor for one year thereafter, be appointed to any civil office of profit under this state which shall have been created, or the emoluments of which shall have been increased during such term, except such office as may be filled by elections by the people.”

When Mr. Settlemeyer was in his final term, lawmakers approved raises for numerous positions, including the job to which he was eventually appointed. That should have precluded Mr. Settlemeyer’s selection for at least a year after his retirement. The Center for Biological Diversity sued, challenging Mr. Settlemeyer’s eligibility.

On Monday, District Court Judge James Wilson gave the green light to the appointment. In his decision, the judge twists and contorts while stretching and straining to justify ignoring the plain wording of the constitutional clause in question.

Article 4, Section 8 applies only “to salary as a general matter,” Judge Wilson opined, arguing that the raises lawmakers approved were across-the-board cost-of-living adjustments for hundreds of state employees and thus fall outside the emoluments clause. He then determines that, because the raises were less than the inflation rate, they don’t count as raises at all — which is surely news to the taxpayers who must pay for them.

Finally, Judge Wilson holds that, “A legislator is not going to undertake a scheme to enact a marginal, across-the-board pay raise merely because he hopes to be appointed to a certain position later.”

Excuse us for asking, but what does all this legal sleight-of-hand have to do with anything? One can read the state constitution high and low and never find an exception to Article 4, Section 8 for cost-of-living raises that don’t exceed inflation. There is nothing in the clause that references “salary as a general matter.” Nor is there any exception for lawmakers with good intentions.

Judge Wilson has single-handedly rewritten an entire constitutional codicil to conform to his own preferences. That is the height of dangerous judicial activism. The Center for Biological Diversity should appeal this decision.