There’s been a lot made of the Nevada Policy Research Institute’s (NPRI) lawsuit against State Senator Mo Denis, where they claim his job with the Public Utilities Commission (a division of the executive branch) is a violation of the Nevada Constitution because he serves in the legislature.
First, let’s take a look at the language in the Nevada Constitution:
Nevada Constitution Article 3 Section 1 subsection 1
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.
NPRI asserts that this section means employees of any division of the executive or judicial branch cannot serve in the legislature. Based on the language, one might arrive at that conclusion, if one takes “any function” quite literally. But how far do you take the meaning of “any function”?
Does it apply to a janitor at UNLV; or all attorneys because they are “officers of the court”? That would probably eliminate most of the legislature. Perhaps there is some sort of guidance and history that might explain what “any function” means.
From where does the language originate?
In 1864, Nevada was vying for statehood, and so the legal and political minds of the day were careful to craft our beloved constitution in a very patriotic way… borrowing language nearly verbatim from the U.S. and other state constitutions.
Just look at the Preamble of the Nevada Constitution:
We the people of the State of Nevada Grateful to Almighty God for our freedom in order to secure its blessings, insure domestic tranquility, and form a more perfect Government, do establish this Constitution.
Sound familiar? Keep reading and you’ll find a lot more familiar langauge.
It just so happens that the language in Article 3, Section 1 isn’t as famous, but it certainly wasn’t new when added to the Nevada Constitution.
John Adams is credited for championing the idea of separation of powers in the United States. He first crafted the nearly identical language we use in the Nevada Constitution in the 1780 Massachusetts Constitution. In case you didn’t know, The 1780 Constitution of the Commonwealth of Massachusetts, drafted by John Adams, is the world’s oldest functioning written constitution. It served as a model for the United States Constitution, not to mention many state constitutions. Here’s the provision:
Chapter 1, Art. XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.
By the way, this language has never been interpreted to exclude regular employees of the executive or judicial branch from serving in the Massachusetts legislature.
Thankfully, another section of the 1780 Massachusetts Constitution gives us further proof:
Chapter 6, Article 2:
No person holding the office of judge of the supreme judicial court, secretary, attorney-general, solicitor-general, treasurer or receiver-general, judge of probate, commissary-general, president, professor, or instructor of Harvard College, sheriff, clerk of the house of representatives, register of probate, register of deeds, clerk of the supreme judicial court, clerk of the inferior court of common pleas, or officer of the customs, including in this description naval officers, shall at the same time have a seat in the senate or house of representatives; but their being chosen or appointed to, and accepting the same, shall operate as a resignation of their seat in the senate or house of representatives; and the place so vacated shall be filled up.
There are three very important points to draw from the inclusion of this clause in the same constitution as the first separation of powers clause:
1) If the separation of powers clause in chapter 1 was so clear that no person employed by any branch may serve in the others, why would it be necessary to include this clause in Chapter 6, Article 2?
2) Since they were making this list, why wouldn’t they go ahead and include “and anyone employed by the executive or judicial branches”?
3) The language of this provision suggests that high ranking and elected officials of one branch should not serve the same manner in any of the other branches.
Note: Although it does mention Harvard Professors, it names no other public institute of learning or the school system.
Conclusion: The separation of powers clause is not a prohibition on employees of one branch serving in another; or else why wouldn’t they have said so when they had the chance to clarify?
Then what does the separation of powers clause mean?
All you have to do is read the writings of John Adams to figure this out.
A representation of the people in one assembly being obtained, a question arises whether all the powers of government, legislative, executive, and judicial, shall be left in this body? I think a people cannot be long free, nor ever happy, whose government is in one Assembly.
John Adams, Thoughts on Government
John Adams included the separation of powers clause in the 1780 Mass. Constitution to ensure “all the powers of government, legislative, executive, and judicial,” weren’t left in one body.
Having an independent judiciary was, and is, a vital element of the success of our democracy and security of our civil rights. In other nations, the judiciary may serve at the pleasure and discretion of the legislative or executive branches. What’s so wrong with that? In that scenario, the judges will simply do the will of their masters (whether executive or legislative branch). Don’t expect impartial judgment. Say goodbye to civil rights.
Separation of powers ensures the independence of each branch of government. It was a measure to ensure judges could be impartial, and to prevent legislative branches from holding tribunals to prosecute people in witch hunt fashion, among other things.
How does all of this relate to Nevada?
In this nation, we have a tradition of common law, and of modeling our states’ governments after one another. The separation of powers clause found in the 1780 Massachusetts Constitution is also found in nearly every state constitution in the Union. They are often referred to as “cookie cutter clauses” by folks in the legal world.
Much like with any contract, courts generally prefer to interpret these clauses the same, regardless of the parties involved. Nevada is just another party using the same cookie cutter clause in its contract with the people.
It makes no sense, and there isn’t any evidence to suggest that the framers of the Nevada Constitution had some grand plan for our separation of powers clause to add some new meaning to it to exclude all employees of each branch from serving in the others. In addition, that wouldn’t seem consistent with the fact that our legislature is a citizens’ legislature, not a full-time one.
This clause was included in the Nevada Constitution for the same reasons it was included in the 1780 Massachusetts Constitution: to ensure an independent and impartial judiciary, and adequate checks and balances between the branches of government. It has nothing to do with keeping public employees from serving in the legislature, or members of the legislature from being public employees.
Quite frankly, it is a bit absurd to suggest that public employees serving in the legislature (or vice versa) is somehow a threat to the independence and checks & balances between each branch of government that John Adams was trying to ensure when he drafted this provision. Much like so many other things we are seeing from the right today, it baffles the mind and saddens the heart to see such plain attempts to abuse the very legal system and constitution they claim to cherish in the name of kicking the little guy and attacking public employees and unions.
Justin is the publisher The Nevada View, which has earned the recognition in the Washington Post’s “Best State-Based Political Blogs,” as well as being awarded the “Most Valuable Blogger Award” by the local CBS affiliate in 2011. Follow him on Twitter @McAffee