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Friday, Dec. 2, 2011 | 2 a.m.
On its face, the Nevada Policy Research Institute lawsuit against state Sen. Mo Denis and the state is ludicrous.
The notion that somehow Denis’ duties repairing computers for the Public Utilities Commission somehow conflicts with his legislative duties is far-fetched. He has no power in the executive branch with that — let me think of a word — ministerial job, so why sue him over it?
Three reasons:
1. There is an important principle at stake here, one easily disregarded by reflexive leftists who would rather change the subject (what about the private-sector conflicts?) and attack the messenger (NPRI is right-wing!).
2. NPRI is a conservative think tank that has concluded — with some merit — that the more public employees there are in the Legislature, the more likely the Gang of 63 will be to expand rather than shrink government.
3. Because they can.
NPRI, which has never revealed its funding sources but probably has comp privileges at all Sheldon Adelson properties, has been waiting to file this suit since it formed a Center for Justice and Constitutional Litigation. And this suit is perfect for the group’s duality — one side is pure political motivation, hoping to sully and diminish Democrats, and one side is real think tank, producing interesting, albeit tendentious data on provocative topics.
On this one, NPRI is not only on the right, it also is … right.
This is not some minor point here, some fleck of constitutional dust that the group is trying to whip up into a storm. This is a bedrock tenet — arguably the bedrock tenet — of our system of government: the separation of powers.
The argument that there should be some allowance made for — what is that word again? — ministerial jobs in the executive branch does not hold water for two reasons.
First, it would be impossible to proscribe exactly which jobs are copacetic. But, second, and more importantly, that would go against the plain meaning of the Nevada Constitution’s separation of powers clause and subsequent legal findings.
Article 3, Section 1, of the state Constitution reads thusly:
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 ….
The underlying principle is almost as clear as the language, with the key word being “any.” As in even a computer technician.
No gray areas for — yes — ministerial functions, despite what legislative lawyers have previously argued to allow their bosses to continue to serve because, as one Legislative Counsel Bureau opinion says, they do not peform “any of the sovereign functions of the state.”
The state Supreme Court, in its wisdom (how often have you heard that?), anticipated the “ministerial” argument 44 years ago in a separation of powers case in which the justices concluded about “ministerial powers” can be globally significant: “To permit even one seemingly harmless prohibited encroachment and adopt an indifferent attitude could lead to very destructive results.”
Exactly. No exceptions. Period.
Executive branch employees and their Democratic Party apologists — very few are Republicans — want to cloud the issue by pointing to NPRI’s obvious political endgame, which is to remove public employees from the Legislature. (Local government workers, who arguably have even more egregious conflicts because as lawmakers they have near-absolute power over the governments that employ them, surely are next in NPRI’s unending quest for justice.)
Don’t misunderstand: Some of the better legislators have been and are public employees — they make up about a fifth of the Legislature. Tough. It’s time they chose one job.
I can already hear the wails of some on the left: Oh, it’s so much worse that private-sector folks who have conflicts on a panoply of issues — even working for firms that lobby — serve in Carson City. Oh, the humanity!
Yes, the legislative process is broken and has been for some time. And, yes, there are myriad conflicts exploited by lobbyists and legislators alike. And, yes, it does affect the quality of laws produced in the capital.
But the issue raised by the NPRI suit is about a seminal constitutional precept that those concerned about a concentration of corporate power and incestuous dealings should not so blithely dismiss in their partisan hysteria. It’s time this issue was resolved, once and for all.
And what then?
The lesser-of-two-evils solution is not as complicated as it seems: Full-time lawmakers paid a decent salary, more transparency on campaign contributions (posted on Internet within 72 hours) and lobbyist disclosures and prohibitions.
Wonder if NPRI would support that attempt to separate the powers.
Might makes "right" ... always has. May the entity with the biggest megaphone win. You betchya.
Jon could actually tone down the rhetoric a bit. "wails" is dismissive in tone and makes you a bit of an *ss. Given that small government has done nothing to make our state a good place to live, except for those who exploit the under educated and poverty stricken, why should anyone be against properly funded and large enough institutions to protect against predatory capitalism?
The separation of powers in government is an important issue and it's time that it was addressed.
We have Justices serving on legislative commissions. Where is the separation of powers in that scenario?
"The underlying principle is almost as clear as the language, with the key word being "any.""
Ralston -- no, the key phrase is "exercise of powers." An employee doesn't do that, sworn officers do.
Our Supreme Court explained this part of our Constitution in last year's Berkson v. LePome. You can find it @ http://caselaw.findlaw.com/nv-supreme-co...
I think the best bit of that case applied here is "As coequal branches, each of the three governmental departments has 'inherent power to administer its own affairs and perform its duties, so as not to become a subordinate branch of government.'"
"Makes you feel ashamed to live in a land where justice is a game." -- Bob Dylan "Hurricane"
P.S. -- if NPRI or anyone else was really serious about this vital Constitutional point they would go after the attorneys infesting our government at every level. Our governor and some legislators are members of the state bar, and sworn officers of the court -- the judicial branch -- yet they're also sworn members of the other branches. This may be grounds for impeachment for perjury of their oaths.
Back to you, Jon...
The case NPRI is using (Galloway v. Truesdell) dealt with a judge who was given by the legislature the duties of performing investigations of marriages. The court found that these were "inherent ministerial powers" of the legislative and executive branch that were improperly conferred on the judicial and therefore it violated the separation of powers. The quote given in the piece isn't put in context. The sentence before it used the word "inherent," which shows the court was talking about a function of the branch, which is something only that branch should be allowed to do (like interpreting and deciding the law). In another case a few years earlier the court said of a state legislator who was also a director of the drivers' license division of the public service commission, "[t]he fact that a public employment is held at the will or pleasure of another, as a deputy or servant, who holds at the will of his principal, is held to distinguish a mere employment from a public office; for in such cases no part of the state's sovereignty is delegated to such employes.'' State ex. rel. Mathews v. Murray, 70 Nev. 116 (1953). This case is more on point than Truesdell because here we have the court explicitly saying that serving as both an employee of the state and a representative in the state legislature is no incompatible.
The underlying issue is sovereign power. Each branch has inherent sovereign powers. The court said the Constitution prevents the other branches from exercising those sovereign powers. For instance, an executive branch employee can't start acting as a judge, or a judicial employee can't start writing new NRS or arresting people. There isn't a bright line rule that says if you get a pay check from one branch you can't work for the other. The idea is if you're a legislator you shouldn't be able to set policy and control power within the other branches of government.
Does being an IT guy for the PUC count as exercising executive power? It'll be interesting to see what the court says, but the case law seems to say that as long as a legislator isn't also Governor, or Attorney General, or Treasurer, or exercising some kind of executive sovereign function, it's fine.
Cont.....
However, if the Court agrees with NPRI, that could mean that if you're a teacher, a professor, or even a janitor at a state building, you would be unable to also be a representative in the Legislature. If NPRI is serious about protecting state sovereignty they should have no problem backing a constitutional amendment to pay our representatives for their time (they are currently only paid for 60 out of 120 days of work). Even if you disagree on the legal analysis, you must agree that enforcing this type of bright line rule would effectively say the only people fit to serve in the Legislature are those who own their own business, are independently wealthy, or are willing to quit their job every two years for 6 months and make only 3 month's pay. The result of a case like this might be something akin to what Senator Kieckhefer did after being elected. He quit his job with the state and was immediately hired by the largest law firm in Nevada, which also happens to be one of the largest lobbying firms in the state. For many legislators it would be a choice between being unemployed or gainfully employed by the people who come and lobby them.
Killer,
Having read the case you cited, it does NOT make a ruling as you alledge. They merely restate the law, not define it as you imagined.
Mr. Ralston supplied a court precedent which decided that any position, no matter how small was worthy of consideration in regards to that law.
As Ralston states and quotes "The state Supreme Court, in its wisdom (how often have you heard that?), anticipated the "ministerial" argument 44 years ago in a separation of powers case in which the justices concluded about "ministerial powers" can be globally significant: "To permit even one seemingly harmless prohibited encroachment and adopt an indifferent attitude could lead to very destructive results."
Exactly. No exceptions. Period."
Next, when I worked for NPRI I had argued that the first case should be seen as clearly nonpartisan (for the very reactions Ralston highlights above). I discovered both Washoe and Clark County had been in violation of state law regarding empowerment schools (a school concept supported by both parties), ie both counties had ignored the state legislature's mandates (with Washoe being the biggest violator and Clark complying with most but not all of the law).
NPRI is not a "messenger," it's an adversary of government, taxpayers, unions and workers. That's what this case is about.
One need not be a "reflexive leftist" to question the intention or the data of a conservative think tank, and asking why NPRI does not direct its energy toward more apparent and more egregious conflicts of interest between the public and private sectors is not a smokescreen; it's a fair question -- just as fair as NPRI's.
For many reasons, including their growing success at undermining government, I also hope NPRI's concerns about any direct breach to the separation of powers will not be blithely dismissed, but I don't believe for two seconds that, whatever the outcome, this case will produce beneficial controls over corporate power or incestuous dealings in Nevada. If NPRI prevails, we might move closer to that full-time, professional legislature to which Jon Ralston alludes. Is that NPRI's objective?
My money says NPRI's wonkish, strict-constructionist view of Nevada will grow dim when it's board and members are obliged to apply the same conflict and purity tests to their friends.
"Having read the case you cited, it does NOT make a ruling as you alledge [sic]. They merely restate the law, not define it as you imagined."
Patrick_R -- that's what courts do mostly, restate the law. The little bit I posted is from their restatement of their 2007 decision in Halverson v. Hardcastle, which was to keep their ruling in harmony with Blackjack Bonding v. Las Vegas Municipal Court (2000). Berkson is just one of the 31 cases in which that court has referred to this particular bit of our Constitution since 1876.
Tomato v. tomato, I guess.
"To different minds, the same world is a hell, and a heaven." -- Ralph Waldo Emerson (from "Metamorphosis"?)
And I bet, like the case you cited, none of them bothered to offer the definition required to answer the question at hand.
"And I bet, like the case you cited, none of them bothered to offer the definition required to answer the question at hand."
Patrick_R -- only 31 cases over 144 years. You look them up. Class dismissed.
Jon, you are so right.
As a teacher, I believe that if I were to run for state Assembly next time around, I would likely win both the primary and the general election. I could then resign from the school district and put myself "Up for bid," to private industries to hire me. The best salary and benefits package offered, would gain my services. Amazingly, I would have the consider the needs of my new employer, when it came to issues affecting them. As we have all seen, no one employed by mining or gaming or nearly any other industry abstains from voting on bills affecting their particular line of employment.
Whether you think it's right or wrong, NPRI has long held the view that public service jobs should be non-existent. Try and prove otherwise, I dare you. Because of what they believe is anti public sector sentiment, they now are trying to remove one of the greatest elements of society - the citizen-legislator. Apparently, teachers, janitors, clerks, cashiers and the like should not be allowed to help determine the direction and shape of democracy, yet it would be perfectly ok for the governor or legislators to work for the mining or gaming or construction industries, because there is no conflict of interest there(hint of sarcasm). The answer is clear: form a private foundation for public workers who serve public office, and allow the to take leave from that state job or teaching job. Then, when their term is over, they return to their previous job.
Then watch as Jon Ralston and the NPRI whine and rant about unfairness and conflict of interest...to deaf ears.
The difference between being in the public sector as opposed to being in the private sector is simply one group is paying the taxes and the other group is getting the taxes. The private sector is paying for services and should have a say in what services it wants and how much it is willing to pay for those services. On the other hand, the public sector is benefiting from those taxes in the form of a salary and retirement. To argue that the public sector has any right to determine their pay and retirement on the back of the private sector is wrong and corrupt.
The danger of having the public sector involved in politics is the same as having the military run by the military. It has often been said that our Republic has been transformed from a limited constitutional rule of law government to a majority rule of man democracy that ignores the constitution whenever the constitution no longer fits its progressive socialist ends. Our current majority rule democracy also is proud of its establishment of meritocracy . . . although that ideal is often lost in a government filled with; let's just call it, juice and special favors. One only needs to point to the City of Henderson and the recent hiring of Josh Reid to make that point. In the end, I believe it is proven that the concept of a majority rule democracy is doomed to fail . . . and the United States is quickly following Europe off that cliff. The answer lies in what the grass roots movement of the Taxed Enough Already movement in this country, and it does not lie in the occupy wall street movement. The former has a time proven answer, and the latter offers only a path to further redistribution of wealth and ultimate failure. So, in the end a blogger such as CMON (CMON -- forgive me if I misunderstood your position) has been indoctrinated into the progressive socialistic promise of a meritocracy and believes that he, with his knowledge and superior abilities can produce a better government. The time honored and proven problem with this path is that his utopian collectivist society has no room for individual rights or thought, and thus the individual is crushed. So, in the end the true class war that exists in our society is between the public and private sectors. Put another way, between the tax payer and those who benefit from those taxes (public sector and big business). Or put yet another way: is between those who rule and those who are the subjects of that rule. Yes, the very concept of Liberty and Freedom is impossible in the end game of a majority rule democracy. It is time we cast off Woodrow Wilson's folly of making the world safe for democracy and go back to what does work for true liberty and freedom. You ask, what works? The answer is simply a limited constitutional government that follows the rule of law. I would not care if it was a Monarch, Oligarchy or a Republic form of government. It simply must have the equivalent of a Magna Carta . . . a Constitution that puts true limits on government that protect the individual's rights, from the crushing blow of the collective and the rule of man.