Local think tank throws a Hail Mary

We'd all be better off if a Carson City judge sided with a conservative think tank and allowed a lawsuit over the separation-of-powers clause to proceed.

But it looks like a long shot.

When the Nevada Policy Research Institute's Center for Justice and Constitutional Litigation sued state Sen. Mo Denis back in November, it was the perfect storm. Denis -- a computer technician for the state Public Utilities Commission, at the time -- was accused of violating the state constitution, which says that anyone who exercises "powers" in one branch of government is prohibited from exercising any "functions" in the two other branches.

Denis, as a state senator, definitely exercised the powers of the legislative branch. By drawing a salary from the PUC, he exercised the functions of the executive branch, contended the lawsuit, brought by attorney Joseph Becker.

Finally, decades of conflicting opinions from attorneys general would be settled, first in the Carson City courtroom of Judge James Todd Russell, and ultimately in the chambers of the Nevada Supreme Court. We'd finally know if public employees -- at the very least, state executive branch employees -- were banned from simultaneously holding public office.

And then in December, Denis quit his PUC job, taking a position as an IT specialist for a private construction company, a move he said had been afoot long before the lawsuit was filed. (Denis, the incoming Senate Democratic leader, said he needed more flexibility to attend to his new political duties than his state job afforded.)

Since Denis was no longer exercising any functions of the executive branch, he moved that the lawsuit be dismissed on the grounds it was moot. And that makes perfect sense. (Then again, Russell in the past has shown a streak of what could charitably be called unpredictability, so what's really moot is any pundit's ability to predict how this will play out.)

In his reply brief, Becker argues Denis's resignation shouldn't end the case, because it's not clear that he (or another state government employee) won't try to hold a public job and an elected title at the same time in the future. That may be true, but it's also entirely speculative, and Nevada courts generally reject cases without a "live controversy."

Becker also argues that while Denis is no longer in violation, several other lawmakers who hold jobs in local governments or school districts are also violating the constitution. There are two problems here: One, this lawsuit was filed against Denis, and no other lawmaker. Two, it's not as clear that local government employees are also subject to the separation-of-powers ban. (A 2004 opinion by then-Attorney General Brian Sandoval, in fact, says they aren't. But a reasonable case can be made that since every local government is a political subdivision of the state, the rule applies to all public workers.)

About the only argument Becker musters that engenders sympathy is when he says the public interest argues for a resolution. While the words of the state constitution are eminently clear, years of conflicting legal opinions leave substantial doubt as to whether state public employees (at least) are eligible to hold office in the Legislature. They, and the constituents they serve, are entitled to a final answer to that question. That answer can come only from the courts. Alas, the prurient curiosity of political pundits and think tank lawyers is probably not enough justification to go forward. (That's especially true given that 2012 is an election year.)

We'd all be better off if Russell and the state Supreme Court ruled. But it doesn't look likely that they will.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter at www.Twitter.com/SteveSebelius or reach him at 387-5276 or SSebelius@ reviewjournal.com.