Nevada’s top court: Some public employees can also serve as state lawmakers

The Nevada Supreme Court has affirmed a decision finding that some public employees are able to serve simultaneously as state lawmakers.

The ruling was close — four of the justices concurred in finding that a District Court judge correctly ruled in January 2023 that the public employees named in a lawsuit from the Nevada Policy Research Institute are not in violation of the state constitution’s separation-of-powers rule. Three justices wrote separate dissenting opinions against the decision, all stating that further proceedings should have been held in the case.

The concurring justices found that the separation-of-powers rule does not allow for dual service in the state executive and legislative branches. However, none of the lawsuit’s respondents “exercise the constitutional authority of the executive department in the other positions they occupy,” according to the opinion released Thursday.

The opinion only addressed the scenarios of the four lawmakers named in the lawsuit, without ruling on other situations, such as county prosecutors serving in the Legislature.

Thursday’s opinion stems from a lawsuit challenging lawmakers who are both legislators and public employees, which was filed in 2020 by the Nevada Policy Research Institute, a private nonprofit think tank focused on limited government. The organization filed similar legal challenges in 2011 and 2017

The organization has previously argued that the separation-of-powers doctrine bars all government employees — state and local — from serving as a state lawmaker.

John Tsarpalas, the president of the Nevada Policy Research Institute, said although he was disappointed the decision did not offer more guidance on other public employees who are working as lawmakers, he believes the overall case was a success.

“We got a solid ruling that state employees are in the executive branch, and therefore they can’t serve in our state Legislature,” Tsarpalas told the Review-Journal. “Which is something that in the past has been crossed over and not followed. So that’s a win.”

Tsarpalas said it’s unclear if the organization will continue with legal challenges surrounding the issue.

Bradley Schrager, an attorney who represented two of the legislators named in the lawsuit, said that the case is “over” after none of the lawsuit’s targets were found to be in violation of the state constitution.

“NPRI was arguing that any and every public employee, from your local librarian to your kid’s elementary school custodian, should be barred from serving in Nevada’s citizen Legislature, and it was good to see the Supreme Court demonstrate how wrong they’ve always been,” Schrager said in an emailed statement.

There are four Democratic legislators who are named in the lawsuit: Assemblywoman Brittney Miller and Assemblywoman Selena Torres, who are both teachers in the Clark County School District; State Sen. Dina Neal, an adjunct professor at Nevada State College; and State Sen. James Ohrenschall, a Clark County deputy public defender.

The Nevada Policy Research Institute also initially challenged the employment of two prosecutors in the Clark County district attorney’s office: Democratic state senators Melanie Scheible and Nicole Cannizzaro, but both have since left the district attorney’s office and are no longer parties to the lawsuit.

The justices explicitly stated in the opinion that they were not addressing whether prosecutors with a dual role as a lawmaker are violating the separation-of-powers rule.

Kevin Powers, general counsel for the Nevada Legislative Counsel Bureau’s legal division, said that the bureau will apply the legal principles from the opinion when advising the Legislature. He declined to comment further on the case.

Justices Lidia Stiglich, Elissa Cadish, Ron Parraguirre and Linda Bell wrote in the 24-page concurring opinion that while the state constitution bars legislators from simultaneous service in another department of state government, it does not bar a lawmaker from working in local government.

The court ruled that public employees such as public school teachers and public defenders do not fall within the state’s executive department.

The justices also ruled that the Board of Regents, which controls the Nevada System of Higher Education, and therefore Nevada State College, does not fall under the legislative or executive branches of state government.

“We conclude that the Board of Regents has an independent constitutional authorization and constitutional power discrete from the other departments of state government,” the justices wrote.

Justice Kristina Pickering wrote in her dissenting opinion that while she agrees that public defenders do not violate the separation-of-powers rule, she questioned the determination that the Nevada System of Higher Education does not fall within the executive branch.

“Further, elevating NSHE to the status of a coordinate branch of government not answerable to one of the three branches of state government could give the Board of Regents far more autonomy than was ever envisioned by the founders, leading to unintended consequences,” she wrote.

Justice Douglas Herndon wrote a strongly worded 17-page dissent, stating that the case should have been sent back to the District Court for procedural issues, and because of the substantive rulings on the separation-of-powers issue. Herndon wrote that the lawsuit should have been tested through the litigation process to determine if the individual lawmakers carry out state government functions in their jobs as public employees.

Herndon stated that by resolving the case without further discovery procedures, the high court “abandons the principles that guide us in every other case at the dismissal stage of a lawsuit,” according to his dissenting opinion.

He also wrote that the concurring opinion ”takes too myopic a view as to whether the individual respondents exercise a function appertaining to the Executive branch.”

“The organization and the individual are not the same,” Herndon wrote. “The constitution calls for a specific inquiry into the person charged with violating the division of powers.”

Justice Patricia Lee wrote in a dissenting opinion that while she agreed with some procedural rulings, she sides with Herndon’s findings that the concurring justices’ opinion “oversimplifies” the process to determine if a lawmaker is violating the separation-of-powers rule. She said the majority opinion focused too heavily on the agencies and departments the lawmakers work for.

“I instead believe that the respondents must be evaluated on a case-by-case basis to determine whether they each individually exercise executive power in their nonlegislative role, thus violating the separation of powers,” she wrote.

Contact Katelyn Newberg at knewberg@reviewjournal.com or 702-383-0240.