Posts Tagged ‘separation of powers’

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.

Regent Ron Knecht Confirms He Was Let Go From His State Job, Says No Cause Given

By Sean Whaley | 1:41 pm May 25th, 2012

CARSON CITY – Board of Regents candidate Ron Knecht confirmed today he was let go from his state job with the Public Utilities Commission in March, saying no cause was given despite his request for an explanation.

“I can’t tell you a lot,” he said. “I’m no longer working there.”

Ron Knecht.

Knecht said he does know he was not fired for cause.

“My performance reviews were always outstanding,” he said.

Knecht, who spent more than a decade with the PUC as a senior economist, said the agency does not believe it has to give a reason because he was an at-will employee.

The agency today would say only that Knecht no longer works there.

“They believe they don’t need to give a reason when they terminated someone,” Knecht said. “So there’s not a lot I can tell you because I wasn’t given any reason. I wasn’t given proper notice. I was told I was being terminated on March 23, effective March 27.”

Knecht said his request for a reason for his dismissal has not been responded to by the agency.

Knecht said he is looking both for another position and work as a consultant, and that the development will not affect his race for another six-year term on the Board of Regents overseeing the Nevada System of Higher Education.

Knecht is the second state elected official to leave the PUC in the past several months.

State Sen. Mo Denis, D-Las Vegas, left his job with the agency in November 2011, just as he was named in a lawsuit alleging a violation of the state constitution’s separation of power clause prohibiting government employees from serving in the Legislature.

Denis said he chose to leave his position as a computer technician to take a job in the private sector and that his decision had nothing to do with the lawsuit.

The Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation filed the lawsuit against the PUC alleging Denis’ position violated the separation of powers clause. The case was dismissed as moot after Denis left the agency, but that decision in on appeal to the Nevada Supreme Court.

Knecht said his termination came shortly after he filed for another term on the Board of Regents on March 12. He had submitted paperwork to agency officials informing them of his intention to run for the nonpartisan post, which was accepted.

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.

Separation Of Powers Lawsuit Aimed At Nevada Lawmaker Dismissed By District Court, Appeal Planned

By Nevada News Bureau Staff | 12:23 pm February 27th, 2012

CARSON CITY – A Carson City district judge has dismissed a lawsuit filed by a conservative Nevada think tank claiming that a lawmaker violated the state constitution’s separation of powers clause by also working as a public employee.

The lawsuit was dismissed because the lawmaker targeted in the case by the Nevada Policy Research Institute, Sen. Mo Denis, D-Las Vegas, left his job with the state Public Utilities Commission last year. He now works in the private sector.

Joseph Becker, chief legal officer and director of NPRI’s Center for Justice and Constitutional Litigation, said the decision will be appealed to the Nevada Supreme Court.

In dismissing the case, District Judge James Todd Russell said in a brief order filed Friday: “The Nevada Supreme Court has clearly held that it is, ‘Of course, the duty of every judicial tribunal is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions or to declare principles of law which cannot affect the matter in issue before it.”

The order was first reported today by Las Vegas Sun political columnist Jon Ralston.

NPRI had asked the court to proceed with the case even with Denis’ departure from state service, arguing the matter should continue as a matter of “widespread importance.”

In announcing the intent to appeal, Becker said: “The separation-of-powers clause in Nevada’s constitution is perfectly clear — a sitting state legislator is not allowed to exercise any functions in the executive or judicial branch of state government. This principle is foundational to Nevada’s government, and that’s why we strongly oppose the court’s decision to dismiss Pojunis v. State of Nevada, et al.

“Although Sen. Mo Denis resigned from his executive-branch employment within hours of being served with CJCL’s lawsuit — a de facto admission on the merits of the case — it is hard to imagine a case that better satisfies the ‘Public Interest’ exception to the mootness doctrine than this one,” he said.

 

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.”

Legislative Panel Begins Review Of State Agency Budgets Without Cooperation From Governor

By Sean Whaley | 9:32 am July 8th, 2010

CARSON CITY – An effort by the Nevada Legislature to undertake a fundamental review of several state agency budgets with an eye to improving efficiencies and saving money began yesterday without support from Gov. Jim Gibbons or his staff.

The first meeting looked at two programs: the Parole and Probation Division and the building lease program administered by the Division of Buildings and Grounds. The six-member Legislative Committee for the Fundamental Review of the Base Budgets of State Agencies conducted the review without administration officials present at the meeting, however.

State employees were following the directive of Gibbons in a letter sent to lawmakers Friday saying executive branch staff would not participate in the review. Gibbons has questioned the motives of the committee and cited the separation of powers doctrine as reasons for his directive to staff not to participate.

Legislative leadership from both parties sent a letter to Gibbons last month citing state law that requires participation by administration staff. The issue remains unresolved, however.

Despite the apparent lack of cooperation, the panel voted to send an inquiry to the agencies on the agenda to answer several follow-up questions raised by the information prepared by legislative staff. The panel also voted to request the presence of several administration officials at the next meeting.

Assemblywoman Debbie Smith, D-Sparks, said the requests are being made by the panel without any indication yet if the executive branch staff will respond or attend the next meeting.

Smith said there is no desire on the part of the Legislature to engage in a protracted legal battle with Gibbons, who is leaving office in January. Legislative leadership, in its letter sent to Gibbons in June, said the panel could subpoena administration officials but Smith said lawmakers are dealing with the impasse, “one day at a time.”

Even so, Smith said she was disappointed and frustrated by Gibbons’ decision, noting that a lot of time could have been saved if administration officials had been present at the meeting to answer questions.

“Just a conversation at the table could have solved a lot of issues here today, just as we see at any other hearing,” she said.

Senate Minority Leader Bill Raggio, R-Reno, said he is disappointed at Gibbons’ decision not to cooperate with the review. In all his years of legislative service with six different governors, there has always been a willingness by the executive branch to work cooperatively with lawmakers in between legislative sessions, he said.

Lynn Hettrick, deputy chief of staff to Gibbons, said the panel is not doing a real fundamental budget review but instead is “nitpicking little bits here and little bits there.”

Finding savings within the agencies reviewed today would have a miniscule effect on the $3.5 billion hole the state faces in the next two-year budget cycle, he said.

“We ought to be looking at things that truly are a fundamental budget review about how can we fix the issues that we have facing us,” Hettrick said. “To us this is a waste of time right now.”

Hettrick said the request by the panel to have staff testify and provide more information for the next meeting will be reviewed.

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audio clips:

Assemblywoman Smith on Gov. Gibbons’ decision not to participate in the review process:

070710Smith :15 of staff time.”

Sen. Raggio on failure of Gibbons to cooperate with lawmakers:

070710Raggio :33 of these efficiencies.”

Hettrick says panel’s efforts a waste of time:

070710Hettrick1 :11 balance a budget.”

Hettrick says state faces a $3.5 billion budget hole:

070710Hettrick2 :18 balancing the budget.”