The Nevada Policy Research Institute’s legal arm says its lawsuit against state Sen. Mo Denis for allegedly unconstitutionally holding an elective office and a position in the executive branch simultaneously shouldn’t be dismissed, even though he’s quit his state job and the alleged violation appears to be moot.
The conservative think tank shouldn’t hold its breath.
Although NPRI Center for Justice and Constitutional Litigation attorney Joseph Becker gamely argues several exceptions to the mootness doctrine — more on that below — the fact remains that the instant controversy that gave rise to the lawsuit is gone. And as Becker notes in his court filing, Nevada courts generally decide only cases that present live controversies. The likelihood that a court will — or at least should — dismiss this case is high.
Background
The Center for Justice and Constitutional Litigation sued Denis in November, alleging a violation of the Nevada Constitution, specifically Article 3, Section 1, which says, “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.”
Since Denis at the time held a job as a computer technician with the state Public Utilities Commission, the center claimed he was exercising the functions of the executive branch while simultaneously, by virtue of his elected position as a state senator, exercising the powers of the legislative branch.
No court had yet ruled directly on the issue, and a variety of attorney general opinions stretching back decades came to different conclusions. (Most recently, then-Attorney General Brian Sandoval‘s 2004 opinion held that state employees were forbidden from holding elected positions in the Legislature, but local government employees were not.)
So the lawsuit was timely, compelling and definitely concerned a matter of public interest, at least until December, when Denis announced he was resigning from his state job to take over as director of information technology for a private construction firm.
Speculative arguments
In its brief opposition Denis’s motion to dismiss, the center says Denis’s resignation is proof the original complaint has merit. “In essence, this resignation also constitutes a de facto admission on the merits of this case,” Becker writes.
But this is wrong, for two reasons: First, it assumes that a court will eventually rule that simultaneous service in the Legislature and the executive branch is, in fact, barred by the Constitution. The variety of opinions on the subject and the fact that a lawsuit had to be filed to resolve it show, if nothing else, that the matter is far from settled. The merits of the case have yet to be proven, and Denis’s actions do not prove NPRI’s case.
Second, Denis’s explanation of his resignation — that his duties as incoming Senate Democratic leader required more of his time, that his new job would afford him more flexibility to attend to those duties than his state position, and that his job search was in the works long before the lawsuit was filed — is at least as plausible as NPRI’s explanation, which is that he resigned to moot the lawsuit and avoid a hearing on the issue. In either case, speculation as to Denis’s motives is not proof of anything.
It could happen again
NPRI also argues that Denis’s voluntary resignation doesn’t make the lawsuit moot because another state executive branch employee may run for public office, and the same situation could recur, requiring the filing of yet another lawsuit. Becker quotes a U.S. Supreme Court ruling thus: “Voluntary cessation does not moot a case or controversy unless subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
But again, that’s speculation, and it runs counter to Becker’s own argument. According to Becker’s petition — although I take issue with the contention above — Denis fled his state job rather than face the implications of NPRI’s lawsuit. It stands to reason that, if that is why Denis resigned, other Democrats may similarly avoid a dual-service situation to avoid the same outcome. But, in any event, a court may very likely say that NPRI is free to bring a lawsuit should that situation recur, and a “live controversy” result. Potential officeholders are thus on notice, and may guide their behavior accordingly.
Assumes facts not in evidence
Becker also argues that, although his lawsuit was filed against Denis and Denis alone, other lawmakers are potentially violating the separation-of-powers clause by their service in local government or in local public schools. “…[T]here are already numerous, similarly situated, potential defendants currently violating the same constitutional provision by serving functions in more than one branch [of government] simultaneously.”
But this isn’t entirely accurate. First, only Denis held a state job clearly within the executive branch of government. (Denis, in a discussion with me in December, argued the PUC may not be considered part of the “executive branch,” but I reject that contention.) No other lawmaker-public employee has such a job, and therefore they are not “similarly situated” to Denis.
Second, it has yet to be established that local government employees are exercising the functions of the executive branch of state government. Since Nevada is a Dillon’s Rule state and all local political subdivisions have only that authority granted or implied to them by state statute, it’s reasonable to argue that local government employees are de facto functionaries of the executive branch. But it’s yet to be proven that they are (indeed, Sandoval’s 2004 opinion concluded that they were not).
In order to resolve that controversy, however, NPRI will have to sue a local government employee and advance the case against them. This lawsuit specifically does not do that.
They want his back pay?
Becker further argues that — if Denis’s dual service was barred by the constitution — then all the pay he received in his state job should be returned to the state. And while this appears to be primarily a tactic to keep the lawsuit alive, this claim cannot stand on its own.
First, Denis had no constructive notice that his dual service was unconstitutional. Yes, the language of Article 3, Section 1 is unmistakably clear. But attorney general’s opinions in more recent years suggest that dual service is possible, provided one is not a supervisor, director or official charged with actually directing state policy. Moreover, opinions from the Legislative Counsel Bureau — which advises state lawmakers — also blessed dual service. Therefore, Denis had at least as much reason to believe his holding of a state job while serving in the Assembly and, later, state Senate, was legitimate as he had to doubt the same.
Second, because of the lack of notice, and because Denis ostensibly performed the duties of his state job to the satisfaction of his superiors, it’s highly unlikely a court would demand he return all the money he made during the period when he was working as both a computer technician and serving in the Legislature. Essentially, he earned that money, along with his retirement benefits, and that should not be taken away from him absent a showing of intentional wrongdoing, a penalty for which is forfeiture of pay. Even if NPRI’s contention about the separation of powers is correct — and there’s ample reason to believe it is — there’s no basis upon which to reclaim Denis’s back pay. On these grounds, too, the brief fails.
But they’re right about this part
But when Becker argues that the case raises an important question of public policy, the resolution of which would be helpful to guide public officers, he’s absolutely correct. “The instant case is the quintessential ‘poster child’ for the public interest exception denoted…” in previous court rulings, Becker wrote.
Indeed, it is: A resolution of the question would be helpful, not only to every public employee in Nevada — whether state or local — who wants to run for office, but for the public in general. This issue has been debated at length on newspaper opinion pages and in the attorney general’s office, without solid resolution or general consensus. There are compelling legal arguments on both sides, as well as compelling practical arguments (for example, the alleged tendency of public employees to “side with” government, versus the fundamental unfairness of denying Nevada citizens the right to seek public office because of their employment). We look to the courts at times like this to decide controversies.
However, it’s probably not going to happen here, since — despite Becker’s best efforts — the case is moot. Unless another state executive branch employee gets elected to the Legislature, or NPRI sues a local government, school district or university employee on the same grounds as it sued Denis, it appears a final ruling on this question will remain elusive.
Well, that was almost embarrassing.
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