Posts Tagged ‘Joseph Becker’

Think Tank Files Legal Brief To Pursue Separation-Of-Powers Case Aimed At State Lawmakers In Public Jobs

By Sean Whaley | 4:21 pm July 30th, 2012

CARSON CITY – A libertarian think tank’s legal team has filed an opening brief in a case before the state Supreme Court seeking to pursue its separation-of-powers lawsuit aimed at state lawmakers who also work in state government jobs.

The Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation (CJCL) filed the brief Friday in its case Pojunis v. State of Nevada, et al. – a lawsuit brought to restore adherence to the separation-of-powers clause found in Article 3, Section 1 of Nevada’s constitution. It named then-state employee and current state Sen. Mo Denis, D-Las Vegas.

Nevada state Sen. Mo Denis, D-Las Vegas. / Nevada News Bureau file photo

Shortly after the complaint was filed in November 2011, Denis announced his resignation from his computer technician job with the Public Utilities Commission of Nevada.

Carson City District Court Judge James Russell then ruled the case was made moot by Denis’ resignation.

The CJCL is seeking to have the case reinstated by the Nevada Supreme Court, citing other lawmakers working in state or even local government jobs that could be affected by a decision in the matter.

Joseph Becker, chief legal officer and director of CJCL, said: “NPRI’s Center for Justice and Constitutional Litigation is appealing this case to the Nevada Supreme Court because the separation-of-powers clause at issue in this case is the same clause that the Nevada Supreme Court has written “is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”

While the interpretation of the separation-of-powers clause may be moot in Denis’ case, Becker is arguing there is a compelling public interest in having the case resolved.

The separation-of-powers clause “makes it perfectly clear that a sitting legislator cannot hold a job in the executive or judicial branch of government, and yet, there are at least 14 conflicting attorney general’s opinions on this issue and no fewer than six current legislators who also hold jobs in the executive or judicial branch of state government,” Becker said.

Even Gov. Sandoval has asked the Supreme Court to “[s]ettle it once and for all,” he said.

“Upholding the constitution’s separation-of-powers clause is a fundamental and ‘public’ legal issue, and we urge the Nevada Supreme Court to let this case proceed,” Becker said.

The lawsuit was filed by the CJCL on behalf of Las Vegas resident William Pojunis, who said at the time he was unemployed and was qualified for Denis’ position and wanted to apply for the job.

In his district court filing seeking dismissal, 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.

Nevada Think Tank Files Notice Of Appeal With Supreme Court In Separation Of Powers Case

By Sean Whaley | 11:16 am March 27th, 2012

CARSON CITY – A conservative Nevada think tank today filed its notice of appeal to the state Supreme Court in its separation of powers case challenging the ability of state lawmakers to also work in public sector jobs.

The Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation filed the notice in Pojunis v. State of Nevada, et al. – a case which it says could fully restore the separation-of-powers clause found in Article 3, Section 1, of Nevada’s constitution.

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 lawsuit was filed in November 2011 against Sen. Mo Denis, D-Las Vegas, who at the time also worked as a computer technician with the state Public Utilities Commission. Denis left state employment to work in the private sector about the same time and a Carson District judge dismissed the action for being moot.

Joseph Becker, chief legal officer and director of CJCL, said the case should proceed despite Denis leaving public sector employment, arguing the important legal principle should be reviewed by the courts.

“. . . we believe strongly that this case meets the ‘Public Interest’ exception to the mootness doctrine and should be allowed to proceed,” he said.

The lawsuit was filed on behalf of Las Vegas resident William Pojunis on Nov. 30, 2011. Pojunis said at the time he was unemployed and was qualified for Denis’ position and wanted to apply for the job.

In his district court filing seeking dismissal, 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.

Nevada Think Tank Announces New Case Aimed at U.S. Fish and Wildlife Service

By Sean Whaley | 11:00 am January 16th, 2012

CARSON CITY – A conservative Nevada think tank today announced the second case taken on by its Center for Justice and Constitutional Litigation (CJCL), this one aimed at the U.S. Fish and Wildlife Service for allegedly flooding a Pahrump church camp through negligent and illegal work on two streams.

The action is being taken on behalf of Victor Fuentes, a 1991 escapee from Cuba who in 2004 formed a church with his wife Annette in Las Vegas called The Ministerio Roco Solida Church, or Solid Rock Church.

“I’m very disappointed with the federal government right now because, coming from Cuba, I know what an overrun country by the government can do to its people,” Fuentes said in a telephone interview. “That is the reason I came to the United States of America. Because my country is overrun by the Communist regime of Fidel Castro.

“And what is happening right now is all our liberty and freedoms are being taken away from me specifically with what the government has done to us and our property in Amargosa Valley,” he said.

The Nevada Policy Research Institute’s CJCL is filing a negligence claim for damages on behalf of his church with the federal agency.

Joseph Becker, chief legal officer and director of CJCL, said the claim for the flooding damage will be at least $86,000 based on one professional estimate. But the permanent loss of the streams is a much more complex issue that the center is still investigating, he said.

“I mean, at a minimum, if you are going to take property, constitutionally it would have to be in a public interest and you have to pay for it,” he said. “We’re not sure they can demonstrate a public use and certainly we know they didn’t pay for it.

“And even aside from that issue, of course, the first claim, that being the negligence claim, you can’t reroute water in a negligent way such that it floods private property,” Becker said.

In 2006, Fuentes purchased a 40-acre, Wild West-themed camp in the Amargosa Valley for $500,000, using a combination of member contributions and his own money. After purchasing the property Fuentes spent another $700,000 refurbishing buildings, installing a septic system and retrofitting elements of the camp — which was renamed “Patch of Heaven.”

By 2010, Fuentes said the property was booked “nearly every weekend” with church groups and campers. The main attractions of the camp were two spring-fed streams flowing through the property, and a swimming pond.

Victor Fuentes at Patch of Heaven.

In the fall of 2010, the U.S. Fish and Wildlife Service began rerouting the streams away from the camp. The case alleges the streams – which had flowed through the property since the 1800s – were diverted to go around the camp, cutting off its recreational and baptismal waters.

The agency completed the rerouting project in early December 2010. On Dec. 23, just before Christmas, rain raised the stream waters over the federal agency’s constructed banks, flooding Patch of Heaven. The camp was submerged in mud and muddy water, severely damaging the buildings and other property.

“It was devastating,” Annette Fuentes said. “Seeing all the work we put into [the camp] ruined by some type of government negligence was unbelievable.”

In addition to the structural damage, the Fuenteses say the overall value of the camp property is now significantly less. Not only has the camp been deprived of its water source, but it is now on a government-created flood plain.

Patch of Heaven flooded.

The Fuenteses reached out to several government officials for help, but received few responses.

“The government acts like a separate entity from the people – they are there, and we are here,” Victor Fuentes said.

In an article in the Pahrump Valley Times in 2009, a federal official said the work was intended to restore the streams to their original channel.

The article quoted Cynthia Martinez, manager of the Desert National Wildlife Refuge complex, who said the alignment is the result of a 15-year management plan. The plan was discussed at public meetings in 2008, including one at the Amargosa Valley Community Center, Martinez said. She said the Fish and Wildlife Service isn’t rerouting the channel but restoring it to its original path.

The restoration of the channel is designed to help the speckled dace, an endangered species of fish, Martinez said.

Speckled dace. / Photo: Utah Division of Wildlife Resources.

“The reason the refuge was established was for threatened and endangered species. One of the restoration techniques we have is to restore their native habitat. That means going back and reconstructing outflow channels from all these springs back in their hydrologically correct direction,” Martinez said.

But Becker said he has maps from the late 1800s showing the water flowing through the property in the same location before it was “hijacked” by the federal agency.

It is the second action taken by the CJCL. In November it filed a lawsuit against the state of Nevada and the Public Utilities Commission alleging the employment of a state lawmaker violated the state constitution’s separation of powers clause.

Sen. Mo Denis, D-Las Vegas, left the job about the time the lawsuit was filed, but the case is being pursued by the CJCL because of the ramifications for other lawmakers serving in state or local government public jobs.

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Audio clips:

Joseph Becker, chief legal officer and director of CJCL, says the federal government cannot act in a negligent manner:

011612Becker :26 floods private property.”

Victor Fuentes says he is disappointed by the actions of the U.S. government:

011612Fuentes1 :19 of Fidel Castro.”

Fuentes says his freedoms have been taken away by the actions of the federal government:

011612Fuentes2 :12 in Amargosa Valley.”

 

Nevada Think Tank Files Court Complaint Challenging Ability Of Government Employees To Serve In Legislature

By Sean Whaley | 3:02 pm November 30th, 2011

CARSON CITY – A conservative Nevada think tank today filed a complaint in district court against Sen. Mo Denis, D-Las Vegas, saying the separation of powers clause in the state constitution prohibits government employees from serving in the Legislature.

Denis works for the state Public Utilities Commission as a computer technician. Attorney Joseph Becker with the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation said his client William Pojunis is qualified to perform, and would like to apply for, Denis’ job.

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

If NPRI wins its case, Denis and several other state lawmakers who work for state and local government and the Nevada judiciary could be forced to pick between their jobs and legislative service.

Becker said the PUC’s employment of Denis violates the state constitution’s separation of powers clause in Article 3, Section 1.

“Nevada’s constitution is perfectly clear: One individual cannot serve in two branches of government,” he said. “Allowing one person to exercise power in two branches of government leads to numerous conflicts of interests and invites corruption. It also destroys the checks and balances that were built into Nevada’s government to protect citizens from power-hungry politicians.

“Applying this principle to this case has significant implications for this state,” Becker said. “We have 63 legislators and something close to 20 percent of them are affected by this provision. They are working in situations that we believe are unconstitutional. When the court holds in our favor, those lawmakers would either have to leave their executive or judicial branch employment or leave the Legislature.”

Denis said today he could not comment on the complaint because he has not seen it.

“I’ve only been hearing pieces of it,” he said. “At some point I will have a comment.”

The PUC had no immediate comment on the complaint either.

NPRI has one strong ally in its court action. Gov. Brian Sandoval, while serving as attorney general in 2004, issued an opinion that also determined that the separation of powers requirement in the state constitution precluded state government employees from serving in the Legislature.

Written at the request of then-Secretary of State Dean Heller, Sandoval’s March 1, 2004 opinion said in part: “It is the opinion of this office that Article 3, Section 1 of the Nevada Constitution bars any employee from serving in the executive branch of government and simultaneously serving as a member of the Nevada State Legislature.”

Sandoval did not find that the separation applied to local government employment, however.

Heller, now a U.S. senator, challenged lawmakers who also worked for the government in 2004, but the Nevada Supreme Court said it could not consider the case, which was brought against the Nevada Legislature, because it is the Legislature’s responsibility to determine the qualifications of its members.

Becker said NPRI’s case is different because it is challenging the PUC’s ability to employ Denis given the separation of powers clause and his election to the state Senate. The complaint was not filed against the Legislature, he said. The complaint was filed in Carson City District Court.

Pojunis, 66, came to Carson City with Becker to file the complaint, but did not directly answer any questions. Becker said NPRI was approached by Pojunis and decided to take the case. Pojunis is currently unemployed.

Some of the other lawmakers who potentially could be affected by a court ruling supporting the NPRI position include Sen. Sheila Leslie, D-Reno, who works for the Washoe County court system,; Assemblywoman Olivia Diaz, D-North Las Vegas, and Assemblywoman Melissa Woodbury, R-Las Vegas, both of whom work for the Clark County School District, and Assemblyman Kelvin Atkinson, D-North Las Vegas, who works for Clark County.

Becker said the legal action is not politically motivated.

“This is about him (Denis) holding a position as a civil servant that he is not constitutionally allowed to hold,” he said.

The Center for Justice and Constitutional Litigation, which calls itself a public interest legal foundation, was established a year ago by NPRI. This is the first case brought by the organization.

Andy Matthews, president of NPRI, said the separation of powers clause is a vital part of state constitutions across the country.

“And when you have decisions that are being made in the Legislative Branch that can impact Executive Branch functions, Executive Branch agencies, it’s very important to make sure that the people who are making those decisions in the Legislature are doing so from the standpoint of what is best for the people of this state and what constitutes good policy, not because of some conflict of interest they may have as a result of their service in the Executive Branch as well,” he said.

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Attorney Joseph Becker with NPRI’s Center for Justice and Constitutional Litigation says the case has significant implications for the state:

113011Becker1 :24 leave the Legislature.”

Becker says the case is not political:

113011Becker2 :14 correct on this.”

Andy Matthews, president of NPRI, says the separation of powers clause is a vital part of state constitutions across the country:

113011Matthews :24 branch as well.”