Nevada Think Tank Says Issues Raised in Separation of Powers Lawsuit Not Moot

CARSON CITY –A lawsuit seeking to clarify a state constitutional prohibition on public employees serving in the Legislature should proceed even though the lawmaker named in the court action has left his public sector job, a conservative Nevada think tank said in a court filing today.

The Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation filed an opposition brief maintaining that Sen. Mo Denis’ resignation from his executive-branch job does not moot Pojunis v. State of Nevada, et al., because of several well-established exceptions to the “mootness doctrine.”

The lawsuit was filed on behalf of William Pojunis on Nov. 30.

“Within hours of being served with this separation-of-powers lawsuit, Sen. Mo Denis announced his resignation from his executive-branch job,” said Joseph Becker, chief legal officer and director of CJCL. “In essence, that resignation constituted a de facto admission on the merits of the case — that, according to Article 3, Section 1, of Nevada’s constitution, it is unconstitutional for a legislator to simultaneously exercise any function in the executive or judicial branches.”

As a result of his resignation from the Public Utilities Commission, Denis’ attorney filed several motions claiming, among other things, that the case is now moot. His motion to dismiss was filed Dec. 20.

In his filing, Denis’ attorney said case law shows that Nevada courts only decide “cases that present live controversies.”

“Courts will not retain jurisdiction where ‘a live controversy becomes moot by the occurrence of subsequent events,’ and ‘will not make legal determinations that cannot affect the outcome of the case,’ ” said Denis attorney Bradley Schrager.

In a telephone interview, Becker said there are several compelling arguments as to why the lawsuit should continue.

“The brief that we filed in opposition makes several very good legal arguments,” he said. “We also mention the fact that the governor is recently on record as saying something needs to be decided.”

Sandoval reaffirmed his position, first stated in an opinion while he was attorney general, that the separation of powers clause should preclude state employees from serving in the Legislature.

“I think it would be important public policy, if this case moves on, for that question to be answered once and for all,” he said today.

Becker said there are also conflicting legal interpretations on the meaning of the separation of powers clause that could be resolved with a Supreme Court ruling.

“So yes, I think it is compelling,” he said.  “There are legal citations that suggest the Nevada Supreme Court recognizes a public interest exception to the doctrine of mootness. And in addition to that, it’s just something that needs to be resolved.”

Becker said: “Even if Denis’ resignation from the PUC means the case does not present a live controversy, the court may still consider the case if it involves a matter of ‘widespread importance.’ There are five well-established exceptions to the ‘mootness doctrine,’ and as our brief details, at least four of those exceptions are applicable in this case.”

Attorney Joseph Becker, left, and his client William Pojunis, take questions after filing a separation of powers complaint against Sen. Mo Denis in November. / Nevada News Bureau file photo.

The four exceptions are the Public-Interest Exception, the Voluntary-Cessation Exception, the Capable-of-Repetition-Yet-Evading-Review Exception, and the Ongoing-Collateral-Legal-Consequences Exception.

“These well-established exceptions show why this case remains justiciable and why the court should and can upload the clear words of the constitution — that it is unconstitutional for anyone exercising any function in one branch to simultaneously exercise any functions, appertaining to either of the other branches of government,” Becker said.

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Audio clips:

Gov. Brian Sandoval says he stands by his opinion written as attorney general supporting the position that state employees cannot serve in the Legislature:

011012Sandoval1 :10 Nevada Supreme Court.”

Sandoval says it would be important public policy for the question to be answered by the Nevada Supreme Court once and for all:

011012Sandoval2 :25 and for all.”

Joseph Becker, chief legal officer and director of CJCL, says there are very good legal arguments to continue with the case:

011012Becker1 :21 by the court.”

Becker says the issue needs to be resolved by the Supreme Court:

011012Becker2 :27 move on this.”