NEVADA POLICY RESEARCH INSTITUTE, INC., A NEVADA DOMESTIC NONPROFIT CORPORATION, Appellant, vs. BRITTNEY MILLER, AN INDIVIDUAL ENGAGING IN DUAL EMPLOYMENT WITH THE NEVADA STATE ASSEMBLY AND CLARK COUNTY SCHOOL DISTRICT; DINA NEAL, AN INDIVIDUAL ENGAGING IN DUAL EMPLOYMENT WITH THE NEVADA STATE SENATE AND NEVADA STATE COLLEGE AND COLLEGE OF SOUTHERN NEVADA; JAMES OHRENSCHALL, AN INDIVIDUAL ENGAGING IN DUAL EMPLOYMENT WITH THE NEVADA STATE SENATE AND CLARK COUNTY PUBLIC DEFENDER; SELENA TORRES, AN INDIVIDUAL ENGAGING IN DUAL EMPLOYMENT WITH THE NEVADA STATE ASSEMBLY AND A CLARK COUNTY PUBLIC CHARTER SCHOOL; AND THE LEGISLATURE OF THE STATE OF NEVADA, Respondents.
No. 85935
IN THE SUPREME COURT OF THE STATE OF NEVADA
OCT 31 2024
140 Nev., Advance Opinion 69
Affirmed.
Fox Rothschild, LLP, and Colleen E. McCarty and Deanna L. Forbush, Las Vegas, for Appellant.
Bravo Schrager, LLP, and Bradley S. Schrager and Daniel Bravo, Las Vegas, for Respondents Brittney Miller and Selena Torres.
Legislative Counsel Bureau, Legal Division, and Kevin C. Powers, General Counsel, Carson City, for Respondent Legislature of the State of Nevada.
Nevada State University and Berna L. Rhodes-Ford, General Counsel, Henderson, for Respondent Dina Neal.
Wiley Petersen and Jonathan D. Blum, Las Vegas, for Respondent James Ohrenschall.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, STIGLICH, J.:
The Nevada Constitution grants each department of state government specific authority to carry out its constitutional function. Executing this authority comprises the fundamental work of governance. Individuals employed by the departments of state government labor to implement and serve these constitutional functions. Integral to performing these roles and preserving the integrity of these constitutional prerogatives is the independence of each department from coercive influence by another. For that reason, separation of these powers stands as perhaps the most vital constitutional principle. We therefore closely scrutinize circumstances where an individual is alleged to serve simultaneously in the legislative and executive departments; such employment would present an intolerable risk that the operation of one department may be impaired by the coercive influence of another.
We thus recognize that dual service in the legislative and executive departments violates the constitutional separation of powers, but we determine that such a constitutional violation is not present here. Considering the dual employments challenged in this appeal, the Nevada System of Higher Education is organized outside the executive department, and thus dual employment with a college within that system and as a state legislator consequently does not implicate constitutional concerns. We also conclude that employment with local government does not involve the exercise of the executive authority constitutionally bestowed on the executive department and, consequently, employment as a public school teacher or public defender while serving as a state legislator does not violate the separation of powers. As the district court reached the correct outcome in dismissing the challenge to respondent legislators’ employments, we affirm.
FACTS AND PROCEDURAL HISTORY
Appellant Nevada Policy Research Institute (NPRI) filed a complaint alleging that respondents Brittney Miller, Dina Neal, James Ohrenschall, and Selena Torres violated the constitutional separation of powers and seeking declaratory and injunctive relief. Miller is a member of the Nevada State Assembly and an employee of the Clark County School District. Neal is a member of the Nevada State Senate and an employee of Nevada State College and the College of Southern Nevada.1 Ohrenschall is a member of the Senate and an employee of the Clark County Public Defender. Torres is a member of the Assembly and an employee of a Clark County public charter school. NPRI sought a declaration that respondents’ dual service as
NPRI appealed, and this court reversed, expanding the public-importance exception to the standing doctrine to the narrow circumstance where “an appropriate party seeks to enforce a public official‘s compliance with Nevada‘s separation-of-powers clause (even if it does not involve an expenditure or appropriation), provided that the issue is likely to recur and there is a need for future guidance.” Nev. Pol‘y Rsch. Inst., Inc. v. Cannizzaro, 138 Nev. 259, 260, 507 P.3d 1203, 1206 (2022). We held that NPRI‘s challenge fell within that exception, reversed, and remanded.
On remand, respondents filed several motions to dismiss. Neal argued that dual employment pertains to only public officers and that public employees do not exercise the sovereign functions of state government that would bar dual employment. Ohrenschall argued that the separation of powers should not apply to employees of local government and that NPRI failed to join required parties. The Legislature argued that NPRI failed to invoke the conditional waiver of sovereign immunity and also failed to join all required parties. Miller and Torres joined the Legislature‘s motion as to these arguments, Neal‘s motion in full, and Ohrenschall‘s motion except Ohrenschall‘s argument regarding the classification of a deputy public defender under Nevada law. Neal joined the Legislature‘s motion. Ohrenschall joined Neal‘s motion and the Legislature‘s argument as to required parties. NPRI moved to strike the motions to dismiss and the joinders as successive to the motions to dismiss that preceded the initial remand.
The district court held a hearing and found no constitutional violation. The court concluded that whether dual employments violated the separation of powers turned on the common law doctrine of incompatible offices, whether a legislator‘s second employment was with a state or a local entity, and whether the employment was as a public employee or a public officer. The court determined that the employments of Miller, Torres, Neal, and Ohrenschall as public school teachers, a professor, and a public defender, respectively, were not incompatible with dual employment as legislators. The court further determined that the separation of powers did not apply to employment by local governmental entities, such as a county, so long as the dual positions were not incompatible. And finally, the court looked to the nature of the positions to determine that respondents’ nonlegislator employments were as public employees rather than public officers. Finding no violation of the separation of powers, the district court accordingly granted the motions to dismiss and denied NPRI‘s motion to strike. NPRI appeals.
DISCUSSION
NPRI contends that one may not maintain employment in two departments of state government, be they statewide or local. Respondents counter that the appropriate focus rests on whether the positions at issue exercise sovereign functions of state government and assert that the executive department positions challenged here do not. Reviewing both constitutional challenges and a dismissal for failure to state a claim de novo, Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007); Buzz Stew, LLC v. City of North Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008), we conclude that the Nevada Constitution bars a legislator from simultaneous service in another department of state government and that the separation of powers protected by the state constitution does not bar a legislator from employment with local government.
The Nevada System of Higher Education is not organized within the executive department, and dual service within it and the Legislature does not violate the separation of powers
NPRI argues that dual service in the executive and legislative departments flouts the
The separation of powers forbids simultaneous dual service in two departments of state government
The Nevada Constitution provides that “[t]he 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.”
Generally, the legislative power vested in the Legislature is the “authority to enact, amend, and repeal laws“; the executive power vested in the Governor is “to carry out and enforce those laws“; and the judicial power vested in the state courts is “to hear and determine justiciable controversies.” Halverson v. Hardcastle, 123 Nev. 245, 260, 163 P.3d 428, 439 (2007) (internal quotation marks omitted). Moreover, each department‘s functions encompass the inherent authority to perform its duties and administer its affairs. Id. at 261, 163 P.3d at 439; see Blackjack Bonding v. City of Las Vegas Mun. Ct., 116 Nev. 1213, 1219, 14 P.3d 1275, 1279 (2000) (“[W]hen a constitution or statute gives a general power, it also grants by implication every particular power necessary for the exercise of that power.“). One exercising these sovereign functions of a given department is a public officer, as distinguished from a public employee. Eads v. City of Boulder City, 94 Nev. 735, 737, 587 P.2d 39, 40-41 (1978).
In this regard, for instance, “[a] judicial function is the exercise of judicial authority to hear and determine questions in controversy that are proper to be examined in a court of justice,” and the constitutional judicial power includes incidental powers related to and derived from the basic functions characteristic of the judicial department. Galloway, 83 Nev. at 20, 422 P.2d at 242. Additionally, each department‘s powers also incorporate ministerial functions necessary for its operation, to “put into effect the basic function of each Department.” Id. at 21, 422 P.2d at 243.
The mandated separation of the executive, legislative, and judicial departments affirms “[t]he fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others.” Humphrey‘s Ex‘r v. United States, 295 U.S. 602, 629 (1935). In such a sense, each department must strive “to prevent such prohibited encroachments lest our fundamental system of governmental division of powers be eroded.” Galloway, 83 Nev. at 22, 422 P.2d at 243. Being subject to two masters creates a risk of coercive influence between departments that would violate Galloway‘s directive to prevent even the slightest encroachment in this regard and Humphrey‘s Executor‘s caution against the risk of even indirect coercive influence from another department.
Nevada State College is not organized within one of the three departments of state government, and therefore dual employment with that institution and the Legislature does not violate the separation of powers
Having determined that dual service in two departments of state government
Article 11 of the Nevada Constitution guides our determination of the location of the NSHE within state government. It provides that “[t]he Legislature shall provide for the establishment of a State University . . . to be controlled by a Board of Regents whose duties shall be prescribed by Law.”
We conclude that the Board of Regents has an independent constitutional authorization
As the Nevada State College is a college within the NSHE,
And we disagree with our dissenting colleagues that further factual development below is necessary. The appeal presents a suitable instance where we may assume NPRI‘s factual allegations for the purpose of reviewing the legal merit of its claims, and we have done so. Cf. Buzz Stew, 124 Nev. at 228, 181 P.3d at 672. Additional factual development would not aid that analysis. Relatedly, we find the proposition that every employment must be factually scrutinized to interrogate the functions it exercises rather than the department in which it is situated unpersuasive. Our construction here accords with the approach taken by sister state supreme courts, e.g., State ex rel. Black v. Burch, 80 N.E.2d 294, 296-99, 301 (Ind. 1948); Saint v. Allen, 126 So. 548, 555 (La. 1930); State ex rel. Spire v. Conway, 472 N.W.2d 403, 412-13 (Neb. 1991), as well as with the view generally taken by the Nevada Attorney General, 1954-357 Op. Att‘y Gen. 93 (1954); 1974-168 Op. Att‘y Gen. 27, 32-33 (1974); 2004-03 Op. Att‘y Gen. 17, 43 (2004); but see 1955-59 Op. Att‘y Gen. 93 (1955) (concluding that a school district employee could not serve as a state legislator but failing to support this determination with legal authority). This court has embraced a 1974 Attorney General opinion which concluded that “because a Highway Patrol Trooper is a member of the executive branch of government, it would be ‘constitutionally invalid for an employee of the patrol to simultaneously serve as a member of the state legislative or judicial departments.‘” Whitehead v. Nev. Comm‘n on Jud. Discipline, 110 Nev. 874, 880 n.6, 878 P.2d 913, 917 n.6 (1994) (quoting 1974-168 Op. Att‘y Gen. 27, 33 (1974)). Moreover, we find the practical consequences of such an approach concerning. Each instance of dual public employment would invite a challenge, and each ruling would be tightly bound to that specific instance. This would yield an impractical rule that would provide little guidance and would subject dual public employees to a risk of harassment and the considerable time and expense of potentially frivolous litigation.
The separation of powers does not bar a member of one department from simultaneous employment in local government
NPRI argues that local government officials are part of the executive department insofar as they carry out the laws of the state. It thus argues that respondents may not serve in the Legislature while employed in various positions by the Clark County Public Defender, the Clark County School District, and a Clark County public charter school.4 Respondents counter that the separation
We conclude that the separation of powers does not bar Clark County employees such as the public school teachers and deputy public defender before the court here from service in the Legislature. Local government employees are distinguishable from employees of a state government department for separation-of-powers purposes, and local executive department employees are not within the state executive department.
To reach this conclusion, we begin with the Nevada Constitution. Nevada relied on California‘s constitution in drafting its own, and we have looked to California decisions interpreting analogous provisions and presumed the same construction was intended. State ex rel. Harvey v. Second Jud. Dist. Ct., 117 Nev. 754, 763, 32 P.3d 1263, 1269 (2001). This presumption warrants particular weight here, where Nevada framers used language nearly identical to California‘s in enacting the separation-of-powers provision. Compare
The Nevada Constitution created and empowered the legislative, executive, and judicial departments. See generally
The separation of powers is not limited to circumstances where both positions are public offices
Respondents argue that the separation of powers implicates dual employment only where each position exercises sovereign authority, that is, specific legislative, executive, or judicial powers exercised as a public officer, relying on State ex rel. Mathews v. Murray, 70 Nev. 116, 258 P.2d 982 (1953). In this capacity, they distinguish public offices from public employment. We disagree that the protections afforded by the separation of powers are narrowed in this way and observe that Murray is distinguishable.
Murray provides that quo warranto actions may lie for challenges to the holding of public office, as distinguished from public employment. 70 Nev. at 120, 258 P.2d at 983-84; see id. at 120-24, 258 P.2d at 984-85 (determining what constitutes a public office and concluding that the director of the drivers license division was not a public office). It implies without stating that the separation of powers bars only public offices but includes no reasoning supporting that implication, which rests only on its proposition regarding the scope of quo warranto actions. Id. at 120-21, 258 P.2d at 983-84. We therefore conclude that Murray does not stand for the proposition that dual service violates the separation of powers only where both positions constitute public offices. Murray directs when quo warranto relief for violating the separation of powers may be appropriate but is not the only guide as to whether dual service violates the separation of powers.
This court clarified the matter in Heller v. Legislature of State of Nev., which notes that quo warranto “is the appropriate vehicle by which to challenge a legislator‘s title to public office.” 120 Nev. 456, 459, 93 P.3d 746, 748 (2004) (emphasis added); cf. Clark County v. Eliason, 136 Nev. 429, 433 n.9, 468 P.3d 817, 820 n.9 (2020) (“In Heller, our discussion of quo warranto actions was dicta, as we had already concluded that a lack of standing resolved that case.“). While a dual-employment challenge against a public officer might be brought by a quo warranto action, Heller also surmises that such a challenge against other public employees may be brought through a request for declaratory and injunctive relief. 120 Nev. at 472, 93 P.3d at 757. Such an action would be pursued against the individual legislator whose dual employment was at issue. Id. at 472-73, 93 P.3d at 757.
Consistent with Heller‘s guidance, we clarify that Murphy describes how and when quo warranto relief may be sought in challenging a dual public officeholder but Murray does not provide that the separation of powers clause does not apply to a public officer who is also a public employee. When the employments are not both public offices, a claimant may still assert, as NPRI does here, a violation of the separation of powers and seek a declaratory judgment and an injunction.
NPRI also argues that the district court should have stricken respondents’ motions to dismiss as successive. Respondents observe that the matter was before the district court on remand after this court reversed the district court‘s determination that NPRI lacked standing. Therefore, they argue, their motions were not successive, and they were free to seek dismissal on the merits. NPRI has offered no authority showing an entitlement to
NPRI also argues that the district court violated the principle of party presentation in basing its decision on the common law doctrine of incompatible offices, asserting that the parties did not brief that issue. The principle of party presentation sets forth that courts rely on the parties to frame the issues of a given matter. United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020). The district court, however “may consider an issue antecedent to . . . and ultimately dispositive of the dispute before it, even an issue the parties fail to identify and brief.” U.S. Nat‘l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (internal quotation marks omitted). “When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). In short, a district court does not reversibly err because it applies a legal rule that it concludes disposes of the issues before it.6 Doing so does not violate the principle of party presentation. Cf. Sineneng-Smith, 590 U.S. at 376, 380 (recognizing that the “party presentation principle is supple, not ironclad” and that “a court is not hidebound by the precise arguments of counsel“). We conclude that NPRI has not shown that relief is warranted in this regard.
The Legislature also argues that dismissal was required because NPRI neglected
state liability or state action are involved here, and this court has recognized that a challenge to a government employee‘s dual service in two departments of government may be challenged by an action against the employee for quo warranto or injunctive and declaratory relief. See Heller, 120 Nev. at 472, 93 P.3d at 757 (dicta); see also State ex rel. Stratton v. Roswell Indep. Sch., 806 P.2d 1085, 1091 (N.M. 1991) (determining that the scope of sovereign immunity protection presented “quite a different question from” whether dual public employment violated the separation of powers); cf. Alden v. Maine, 527 U.S. 706, 757 (1999) (“The [sovereign immunity] rule, however, does not bar certain actions against state officers for injunctive or declaratory relief.“). The Legislature has not shown that dismissal was required on this basis.
Lastly, the Legislature argues that NPRI failed to join all necessary parties, highlighting specifically several judges who also hold roles as adjunct professors at state universities and would potentially be affected by the litigation. The Legislature argues both that relief cannot be afforded among those already parties and that the proceeding would impair the employment interests of other dual holders, relying on
First, the district court was able to assess the constitutionality of the dual employment of respondent legislators without joining other individuals serving dual public employments. See United States v. Nye County, 951 F. Supp. 1502, 1513 (D. Nev. 1996) (“The focus under a
Second, although an absentee with “an interest relating to the subject of the action” must be joined if the nonparty‘s absence will prejudice the nonparty‘s ability to protect that interest,
And third, it is evident that the litigation did not “create[] a risk of subjecting [a] nonparty to multiple or inconsistent obligations.” See
CONCLUSION
We determine that the separation of powers does not tolerate dual service within the executive and legislative departments of state government. While respondents are members of the Nevada Legislature, they are not also employed within the executive department and do not exercise the constitutional authority of the executive department in the other positions they occupy. Respondent legislators therefore do not violate
Stiglich, J.
We concur:
Cadish, C.J.
Parraguirre, J.
Bell, J.
HERNDON, J., concurring in part and dissenting in part:
I concur with the majority that (1) the district court did not err in taking up the motion to dismiss, as it was not successive; (2) sovereign immunity did not require dismissal; and (3) the Legislature is not entitled to relief based on appellant Nevada Policy Research Institute‘s (NPRI) failure to join all necessary parties. Despite my concurrence regarding these ancillary issues, I disagree with the majority‘s conclusion that the district court did not violate the principle of party presentation. I also disagree—both procedurally and substantively—with the majority‘s handling of the separation-of-powers issue. For the reasons more fully discussed below, I would reverse based on these issues and thus respectfully dissent.
The principle of party presentation
In 2022, we reversed and remanded the district court‘s dismissal of this case, concluding that NPRI had standing under the public-importance exception to pursue the “enforcement of the separation-of-powers clause as applied to public officials” and recognizing NPRI‘s “ability to vigorously litigate this important, recurring issue.” Nev. Pol‘y Rsch. Inst., Inc. v. Cannizzaro, 138 Nev. 259, 267, 507 P.3d 1203, 1211 (2022) (emphasis added). As the neutral arbiter of the dispute, the district court should have decided the exact issue this court conferred standing on NPRI to litigate. Unfortunately, the district court did not do so. I conclude that the district court erred in discarding the parties’ legal arguments and instead applying the common law doctrine of incompatible offices. In my view, this conversion of the issue constitutes reversible error based on a violation of the principle of party presentation.
“In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation.” Greenlaw v. United States, 554 U.S. 237, 243 (2008), cited with approval in State v. Eighth Jud. Dist. Ct. (Doane), 138 Nev., Adv. Op. 90, 521 P.3d 1215, 1221 (2022). Under the party-presentation principle, courts “rely on the parties to frame the issues for decision” and “courts [assume] the role of neutral arbiter of matters the parties present.” Id. Accordingly, “[judges] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do, we normally decide only questions presented by the parties. Counsel almost always know a great deal more about their cases than we do....” United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in denial of reh‘g en banc) (emphasis added).
This principle is not new and aligns with the duties constitutionally vested in the judicial department. See
Consistent with the party-presentation principle, this court generally declines to consider issues not raised below. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Likewise, we have also explained that “[p]arties may not raise a new theory for the first time on appeal, which is inconsistent with or different from the one raised below.” Schuck v. Signature Flight Support of Nev., Inc., 126 Nev. 434, 437, 245 P.3d 542, 544 (2010) (internal quotation marks omitted). Moreover, we often decline to address issues presented without cogent argument or relevant authority. See Edwards v. Emperor‘s Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (observing it is appellant‘s “responsibility to cogently argue, and present relevant authority, in support of his appellate concerns“). In other words, “[w]e will not supply an argument on a party‘s behalf but review only the issues the parties present.” Senjab v. Alhulaibi, 137 Nev. 632, 633-34, 497 P.3d 618, 619 (2021). I believe we should hold the district court here to the same principles.
When NPRI initiated this case, it presented a specific issue regarding dual service and the separation-of-powers clause. When respondents filed motions to dismiss, they did not seek in any way to reframe the issue regarding the separation-of-powers-clause allegations. NPRI‘s responsive pleading focused as well solely on the separation-of-powers-clause allegations. At the hearing on respondents’ motions to dismiss, NPRI stated clearly, “[T]his case involves one all important issue, whether the [respondents] are engaging in dual employment in the Executive Branch while serving as elected legislators and whether that violates the separation of powers clause. That is the question.” After full briefing and argument on this clearly and expressly identified issue, the district court announced that it was inclined to deny the motions to dismiss, but it wanted “to go back and relook at everything again.” Instead of resolving the issue presented, the district court addressed an entirely different issue—whether dual service violated the common law doctrine of incompatible offices. See
Notably, in the event the district court found persuasive authority on the issues outside the briefing and argument, NPRI expressly asked for an opportunity to be notified and permitted to provide supplemental briefing. Requesting supplemental briefing is a prudent step that courts may take when confronted with novel or unique legal issues. See, e.g., Washoe Cnty. Sheriff‘s Dep‘t v. Hunt, 109 Nev. 823, 825, 858 P.2d 46, 48 (1993) (noting that this court requested supplemental briefing on a specific question that arose at oral argument); see also
In this case, the majority attempts to justify its conclusion that there was no violation of the party-presentation principle by suggesting that the district court merely applied a dispositive legal rule. However, the district court did not just do that. Despite the parties clearly defining the issue for it, the district court reframed the issue, did not alert the parties it was doing so until rendering its decision, and did not allow any input from them. Additionally, the majority certainly does not view the district court‘s application of the common law doctrine of incompatible offices as dispositive. Instead, the majority states that the doctrine of incompatible offices is not dispositive to the constitutional issue presented. On this, we agree.
The majority also seems to suggest that the district court only “consider[ed] an issue antecedent to ... and ultimately dispositive of the dispute before it, even an issue the parties fail to identify and brief.” Majority op. at 19 (quoting U.S. Nat‘l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993)). The majority, however, does not explain how the common law doctrine of incompatible offices resolved an issue antecedent to the constitutional issue that the parties briefed and argued. And, as stated above, the doctrine was not dispositive to that issue. Nor is this a case where the district court exercised “the independent power to identify and apply the proper construction of governing law.” Majority op. at 19 (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)). Here, the parties did not omit or fail to identify the proper legal framework, the district court did.
In reaching its conclusion, the majority correctly notes that the principle of party presentation is “supple” and that courts are not “hidebound” to the exact arguments presented. Majority op. at 20 (quoting United States v. Sineneng-Smith, 590 U.S. 371, 376, 380 (2020)). Obviously, courts are not strictly constrained to the authority and analysis presented by the parties when deciding an issue that the parties have addressed. See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (recognizing that it is “the responsibility of appellate courts to decide cases in accordance with law, and that responsibility is not to be diluted by counsel‘s oversights, lack of research, failure to specify issues or to cite relevant authorities” (internal quotation marks omitted)). Courts cannot be so constrained, as they must decide cases according to established law. See In re MacDonnell‘s Estate, 56 Nev. 346, 350, 53 P.2d 625, 626 (1936) (recognizing that “[n]o principle is more widely recognized than that a rule of law long established and repeatedly sanctioned will be adhered to by the courts“), reh‘g granted, 56 Nev. 504, 55 P.2d 834 (1936). But I believe courts cannot completely disregard the framing of issues and arguments of the parties and convert the issue to
The majority acknowledges that the district court erred in its application of the incompatibility-of-offices doctrine but proffers a “right result/wrong reason” decision. As discussed above, I disagree with this procedural approach and would remand the matter to the district court to decide the separation-of-powers issue in the first instance. See Mason v. Fakhimi, 109 Nev. 1153, 1158, 865 P.2d 333, 336 (1993) (observing “that this court may decline to decide an issue that was not fully litigated or decided by the district court“). Moreover, deciding the separation-of-powers issue is unnecessary to addressing whether NPRI‘s allegations survive a motion to dismiss under
Had the district court decided the constitutional issue that NPRI has raised, it would be due for appellate review. But, in my view, the district court‘s conversion of the issue violated the principle of party presentation and improperly decided the issue without the benefit of adversarial briefing and argument. In violating the principle of party presentation, the district court did what this court generally does not—address an issue not raised or argued by the parties. I believe that the district court‘s conversion of the issue constitutes reversable error. See, e.g., Sineneng-Smith, 590 U.S. at 375 (holding that the appellate court “departed so drastically from the principle of party presentation as to constitute an abuse of discretion“). Accordingly, I would reverse the district court‘s order granting respondents’ motions to dismiss and remand the case for the district court to properly address the claim raised, i.e., the separation-of-powers issue.
The separation-of-powers issue
Moving on to the substance of the issue, I believe the majority errs by basing its ruling on secondary sources of authority to the detriment of the text of the
“The rules of statutory construction apply when interpreting a constitutional provision,” and we “will look to the plain language of a provision if it is unambiguous.” Schwartz v. Lopez, 132 Nev. 732, 745, 382 P.3d 886, 895 (2016). We must also read the Constitution “as a whole, so as to give effect to and harmonize each provision.” Nevadans for Nev. v. Beers, 122 Nev. 930, 944, 142 P.3d 339, 348 (2006). The Nevada Constitution states:
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.
The second half of the clause describes how the departments shall be divided. It is less linguistically precise than the first half, with its negative phrasing and consecutive dependent phrases. Nonetheless, the second clause remains constrained by the first: the idea of “separate departments” must guide the reader in harmonizing the meaning of the two halves. “No persons charged with the exercise of powers properly belonging to one of these departments” describes the legislator-respondents. “[S]hall exercise any functions, appertaining to either of the others,” describes the performance of a function appertaining to either the Executive or the Judicial branches. It uses “appertaining,” a broad word meaning “relates to, or concerning.”1 It uses the word “any” in modifying the word “functions”
to emphasize that an improvidently exercised function, however seemingly minute or trivial, could infringe upon the principle at play.
We must interpret the two halves of the clause in a manner that harmonizes them into a whole. We do so by effectuating a broad view of what it means for any function to appertain, with a strict emphasis on the division of powers between the three departments. In practice, the constitutional inquiry follows the text in straightforward fashion. A trier of fact must (1) evaluate whether a person is charged with the exercise of power belonging to one branch and then (2) determine, based on evidence properly presented to the court, whether that person also exercises any functions appertaining to either of the others.2
I use the term “trier of fact” because NPRI‘s claim should be tested through the litigation process the same as any other case, including at the sufficiency of its pleadings. To survive a motion to dismiss, NPRI must simply state a claim under which relief can be granted.3
407, 510 P.3d 802, 807 (2022). We “review a district court order granting a motion to dismiss de novo.” Zohar v. Zbiegien, 130 Nev. 733, 736, 334 P.3d 402, 404 (2014). We “accept[] the plaintiffs’ factual allegations as true.” Sanchez v. Wal-Mart Stores, Inc., 125 Nev. 818, 823, 221 P.3d 1276, 1280 (2009). And an order granting a motion to dismiss “will be affirmed only where it appears beyond a doubt that the plaintiff
In my view, NPRI has stated a possible claim of a constitutional violation against the individual respondents based on the bedrock principle that “no persons” shall violate the division of powers.
None of the cases cited by any of the individual respondents forecloses the possibility of a division-of-powers violation by an individual employed by NSHE or in local government because this court has never addressed these issues. For example, while State ex rel. Mathews v. Murray may stand for the proposition that the director of the driver‘s license division of the public service commission does not violate the division-of-powers clause by serving as a State Senator, 70 Nev. 116, 119-20, 258 P.2d 982, 983 (1953), presumably, the director of the driver‘s license division exercises different functions from a university professor or a county public defender. However, this case has no evidentiary record upon which to determine what functions the university professor-respondent or public defender-respondent actually exercises. I think it possible that some NSHE or county employees could exercise functions appertaining to the Executive branch, and I do not believe much imagination is required to conceive of such a scenario. Even the majority can conceive it possible, albeit in the narrow case of county prosecutors. Majority op. at 13 n.4. So, I would hold that NPRI has stated a possible claim for relief under the Constitution.
By contrast, the majority takes too myopic a view as to whether the individual respondents exercise a function appertaining to the Executive branch. I first address its analysis of respondent Dina Neal. The majority reasons that the NSHE is not part of the Legislative, Executive, or Judicial departments. Majority op. at 8-11. It concludes that Neal does not violate the separation-of-powers principle by serving as an employee of Nevada State College and on the Legislature. Majority op. at 11. I disagree for two reasons: The majority confuses the NSHE with the individuals who comprise the NSHE, and it conflates the source of the NSHE‘s power with whether any individual performs any function appertaining to a department of government.
The majority relies on an unstated premise: If the institution of the NSHE does not violate the separation of powers, then its individual members must not either. It does not support this assumption with any authority, nor does it explain why the assumption must be true. Instead, it takes a leap of faith. It jumps from “the NSHE is not within the executive department” to “Nevada State College is a college within the NSHE” before landing at “Neal‘s dual service as an employee of Nevada State College and as a member of the Nevada Assembly does not violate the separation of powers.” Majority op. at 11. But the majority does not explain how it got there or how it can be assured that Neal does not perform any function appertaining
This exemplifies the problem with trying to draw conclusions about individuals from the characteristics of the organizations to which they belong. The organization and the individual are not the same. The constitution calls for a specific inquiry into the person charged with violating the division of powers.
Furthermore, the majority focuses on the constitutional source of the NSHE‘s power rather than the functions it exercises. It rules out the three departments to conclude that the NSHE exists in an unnamed, discrete department of state government. This is both legal error and contradictory to the constitution. Cf.
For example, the majority argues that State ex rel. Richardson v. Board of Regents of University of Nevada, 70 Nev. 144, 261 P.2d 515 (1953), supports the conclusion that the NSHE Board is not part of the Executive branch. I do not believe this court either said or implied any such thing. To the contrary, it held that the Board‘s post-hearing firing of a professor constituted the exercise of judicial power rather than executive power. State ex rel. Richardson, 70 Nev. at 148, 261 P.2d at 517 (“Under such circumstances the act of the board was judicial in its nature.“). And the premise for which the majority cites the case does not connect to its conclusion. Even if the Board‘s actions are susceptible to judicial review, so are many actions that constitute the exercise of a function appertaining to
any of the three branches of government. This court often reviews the constitutionality of statutes passed by the Legislature, actions taken by the Executive branch, and orders issued by the Judiciary. The mere fact that judicial review applies to a body does not render it immune from compliance with the constitutional principle of division of powers. The majority‘s struggle to identify which department NSHE falls into is a symptom of its attempt to resist the express language used by our framers.
I believe the majority errs in both the substance and the method of its analysis. It attempts to discern far-reaching principles about the nature of power exercised by the NSHE from wisps of sentences taken across various cases. But none of the cases it cites addresses the issue we face today; nor do their holdings preclude the claims brought by NPRI.
We have previously expressed what constitutes the exercise of executive power. We did not focus on the source of constitutional authority; instead, we derived a bright-line rule. “The executive power extends to carrying out and enforcing the laws enacted by the Legislature.” Galloway v. Truesdell, 83 Nev. 13, 20, 422 P.2d 237, 242 (1967). The dispositive question that the majority should have asked in this case is whether any employee of NSHE exercises any function appertaining to carrying out and enforcing the laws enacted by the Legislature. Such an inquiry fits neatly within the constitutional confines of
Even if the majority‘s conclusion is ultimately correct, that the nonparty institutions
I also find problematic the majority‘s internal inconsistency, as it holds that “[l]ocal government employees are distinguishable from employees of a state government department for separation-of-powers purposes,” Majority op. at 13, but leaves open the possibility of suit against county prosecutors, who are clearly local government employees. If a case may be tried specifically against county prosecutors, why would the same principle not apply to other county employees? The proper analysis would focus on the functions exercised by each local respondent, but the same flaws arising in the majority‘s analysis of Neal appear in its treatment of the local respondents. The majority finds it impossible that any local respondent violates the separation of powers not based on evidence pertaining to those respondents, but on an extra-jurisdictional look to California‘s since-amended constitution and various other states’ court decisions. And again, the majority does not mention the text of Nevada‘s constitution except in comparison to the first draft of California‘s. We should adhere to our steadfast principle that where constitutional text is unambiguous, we need not address legislative history or secondary sources of authority.
The public legitimacy and reputation of our Legislature, Executive branch, and Judiciary rely upon the performance of the individuals who comprise these departments.
Contrary to the majority, I am not convinced that the district court reached the right outcome here albeit for the wrong reasons. Because I would reverse the district court‘s order and remand the case for further proceedings, I dissent.
Herndon J.
PICKERING, J., concurring in part and dissenting in part:
I agree with the majority that Ohrenschall‘s service as a deputy Clark County public defender is compatible with his dual service as a legislator. But I disagree with the majority‘s determination that NSHE is not organized within the executive department, as well as its analyses regarding Neal, Torres, and Miller.
The separation of powers “is probably the most important single principle of government declaring and guaranteeing the liberties of the people.” Galloway v. Truesdell, 83 Nev. 13, 18, 422 P.2d 237, 241 (1967). Like the
[t]he 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.
Constitutional interpretation must begin with the constitution‘s language. Landreth v. Malik, 127 Nev. 175, 180, 251 P.3d 163, 166 (2011). In interpreting the constitution‘s words, this court should look to their definitions at the time of drafting. See Strickland v. Waymire, 126 Nev. 230, 234, 235 P.3d 605, 608 (2010) (“The goal of constitutional interpretation is to determine the public understanding of a legal text leading up to and in the period after its enactment or ratification.“) (internal quotes omitted). Not only does the separation-of-powers clause delineate the three separate departments of our state government, but it also contains an “express provision prohibiting any one branch of government from impinging on the functions of another.” Hearn, 134 Nev. at 786, 432 P.3d at 158 (internal quotes omitted). That provision, the
This dual-service prohibition has two components. First, it applies to a person who is exercising the “powers properly belonging to one of these departments.” Previously, we determined that the subset of state employees who possess government powers is limited. In Galloway, 83 Nev. at 20, 422 P.2d at 242, this court clearly defined who wields the powers of the legislative branch. “Legislative power is the power of law-making representative bodies to frame and enact laws, and to amend or repeal them.” Id. Thus, only members of representative bodies exercise legislative power; those merely employed by the Legislature do not possess legislative power. See also
While the set of people exercising state government powers is narrow, the set of people exercising state government functions is broader. The second component of the dual-service prohibition bars anyone covered by the first component from exercising “any functions, appertaining to either of the other” branches of state government unless explicitly authorized in the constitution to do so. While function and appertain are broader words than power, the second component of the dual-service prohibition does not include all government employees in its sweep.
That all four legislators here exercise the powers properly belonging to the legislative branch is beyond question. The sole separation-of-powers issue presented is whether, in their respective employments outside the Legislature, they also exercise any function appertaining to either the state judicial or executive branches. The majority concludes they do not, either because the legislators are employed by local government or, in Neal‘s case, employed by the state university system, which in its estimation falls somewhere outside the three branches of state government. I would instead focus the analysis on the language of our constitution‘s dual-service prohibition: Do these legislators exercise a function, and is that function appertaining to one of the other branches of state government?
Dictionaries contemporaneous with the
Courts in several states with similar dual-service prohibitions have wrestled with how broadly the second component of the dual-service
In determining whether a legislator who is also a public employee exercises a function appertaining to one of the other branches, the contemporaneous definitions suggest that the dual-service prohibition sweeps more broadly than the California court found, but not so broadly as the Oregon court determined. The definitions of function make it clear that government functions are rooted in specific government offices. After all, functions “peculiarly” pertain to offices in one definition and stem from an office‘s specific “duties” in another. An office is not just any job—it is “a public charge...invested with some of the functions pertinent to sovereignty, or having some of the powers and duties which inhere within the legislative, judicial, or executive departments of the government.” Black, 80 N.E.2d at 299 (internal quotes omitted). Additionally, the definition of “appertain” makes it clear that the function must, “by right, nature, appointment, or custom,” relate to one of the branches of government. That function the person is doing must relate in some legal, natural, appointed, or customary way to that branch of government.
For a person who exercises government power to violate the dual-service prohibition, therefore, that person must exercise some duty that is rooted in a public office that is itself a legal, natural, appointed, or customary part of a different branch of government than the one in which that person exercises power. A person exercising a function need not necessarily be an officer themselves. After all, officers may hire others and delegate their sovereign duties to these employees. Black, 80 N.E.2d at 301. But exercising a function requires more than the mere employment the Oregon court required. In short, the dual-service prohibition‘s language does not permit sweeping categorical exclusions.
The majority correctly concludes that
Whether Miller‘s and Torres‘s employment as public school teachers offends
Determining whether a local government employee exercises executive functions depends on the position occupied and its duties and normally requires specific analysis. Yet, this determination will not necessarily be a factual inquiry, either. Judges may well in most cases determine whether a person, given their dual positions, exercises a function appertaining to another branch of state government as a matter of law. But as regards Miller and Torres, this court would be well served by full briefing and further factual findings before concluding their employment does not violate the separation-of-powers doctrine. Thus, I agree with Justice Herndon that this issue warrants further factual and legal development in the district court.
Finally, I disagree with the majority‘s decision to categorize NSHE as organized outside of the three governmental departments and, on that basis, to conclude Neal‘s employment does not offend the separation-of-powers doctrine. Importantly, neither Neal nor any of the other parties argued in their briefs to this court that NSHE is somehow a fourth branch of state government such that Neal‘s dual service as a legislator and an NSHE professor is permissible. In undertaking this analysis on its own, the majority disregards the principle that courts “rely on the parties to frame the issues for decisions and to assign to courts the role of neutral arbiter of matters the parties present.” State v. Eighth Jud. Dist. Ct. (Doane), 138 Nev., Adv. Op. 90, 521 P.3d 1215, 1221 (2022) (quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008); see United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020)). Though an appellate court “is not hidebound by the precise arguments of counsel,” that does not justify the takeover of the appeal by deciding questions that have not been raised. Sineneng-Smith, 590 U.S. at 380. And no party argued to this court that NSHE is organized outside of the three governmental departments. That the parties briefly addressed this point below does not justify addressing it now where the district court did not analyze those arguments and Neal does not resurrect them on appeal. See id.
Even were this issue properly before the court, I disagree with the majority‘s analysis. On its face,
Next, though the constitution grants NSHE and the Board of Regents substantial autonomy, it stops short of granting NSHE and the Board full autonomy. Cf. Bd. of Regents v. Oakley, 97 Nev. 605, 607-08, 637 P.2d 1199, 1200-01 (1981) (rejecting the idea that the Board of Regents has “unique constitutional status” or “virtual autonomy” from the Legislature).
NSHE‘s position in this regard is not unusual: The constitution creates other autonomous offices, like that of the Secretary of State, the Treasurer, the Controller, and the Attorney General, that fall within the executive branch.
Because NSHE is a state organization that is not given full autonomy or separate status by the constitution, it follows that NSHE must fall under one of the three branches of state government. Nothing in the constitution suggests NSHE falls under the judicial or legislative branches, so it falls under the executive branch, a deduction that tallies with our prior characterization of the Board of Regents as operating in an executive and administrative capacity, as well as the long-held view that education is a function of state or local government. See Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (“[E]ducation is perhaps the most important function of state and local government.“); Richardson v. Bd. of Regents, 70 Nev. 144, 147-48, 261 P.2d 515, 516-17 (1953) (referring to the Board‘s “executive and administrative capacity“) (internal quotes omitted).
To hold otherwise goes against the plain language of the constitution and the reasoning many other courts have employed in addressing whether a state university and its employees come under the executive branch. Cf. Stolberg v. Caldwell, 402 A.2d 763, 769-71 (Conn. 1978) (rejecting the argument that its constitution intended to establish state colleges as autonomous and outside the three branches of state government); Galer v. Bd. of Regents of the Univ. Sys., 236 S.E.2d 617, 618 (Ga. 1977) (stating that state universities are agencies of the executive branch of state government); Univ. of Ky. v. Moore, 599 S.W.3d 798, 805-10 (Ky. 2019) (concluding the state university falls under the executive department even though it is also an independent state agency); Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 289 n.8 (Minn. 2004) (noting that the state constitution specifically describes three branches of government and rejecting the idea that the university is a separate branch); Van Slyke v. Bd. of Trs., 613 So. 2d 872, 876-79 (Miss. 1993) (concluding that, as a constitutionally organized state agency, the Board of Trustees over higher learning was part of the executive branch); Spire v. Conway, 472 N.W.2d 403, 409-12 (Neb. 1991) (concluding that because there are only three branches of government, and the state university system and the Board of Regents are not in the legislative or judicial branch, they are an administrative or executive agency and a member of the executive branch); Nord v. Guy, 141 N.W.2d 395, 402 (N.D. 1966) (concluding that where the board was created to control and administer the state higher education institutions, this power was administrative and put higher education and the board under the executive branch rather than creating some separate “miniature legislature“); S.D. Bd. of Regents v. Meister, 309 N.W.2d 121, 123-24 (S.D. 1981) (concluding higher education fell within the executive branch where the education statutes were added as part of an executive reorganization); Hartigan v. Bd. of Regents of W. Va. Univ., 38 S.E. 698, 699 (W.V. 1901) (calling the university system an “arm of the state government” that belongs to the executive department); Kaye v. Bd of Regents of Univ. of Wis. Sys., 463 N.W.2d 398, 400 (Wis. Ct. App. 1990) (recognizing that the university system and the Board of Regents fall under the executive branch). Further, elevating NSHE to the status of a coordinate branch of government not answerable to one of the three branches of state government could give the
Given the complexity of this issue, the extensive caselaw in other states regarding similar issues, the lack of briefing, and the importance of our decision on this point, this court would benefit substantially from targeted appellate briefing on this issue and, even more, from adequate factual development and a district court decision below. Until that happens, this court should neither reach the issue of whether NSHE stands independent from the three branches of government nor conclude that Neal‘s employment as a university professor does not offend the separation-of-powers clause‘s dual-service prohibition.
For these reasons, while I concur with my colleagues that Ohrenschall‘s dual service in the Legislature and as a deputy Clark County public defender does not offend the Nevada Constitution, I otherwise respectfully dissent and would vacate and remand for further legal and factual development of the issues outlined above.
Pickering J.
LEE, J., concurring in part and dissenting in part:
I concur with the majority that the district court did not violate the party-presentation principle by sua sponte invoking the incompatible-offices doctrine. While the party-presentation principle requires courts to “rely on the parties to frame the issues for decision,” Greenlaw v. United States, 554 U.S. 237, 243 (2008), I find that the application of the incompatible-offices doctrine is sufficiently consistent with the separation-of-powers question framed by the parties. Both matters concern the proper separation of three branches of government, and, despite one drawing from constitutional law and the other from the common law, the core issue is the same. As the majority notes, the party-presentation doctrine does not require an orthodox adherence to the exact arguments presented by the parties. See United States v. Sineneng-Smith, 590 U.S. 371, 380 (2020); Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). And it is within a court‘s power to “identify and apply the proper construction of governing law,” even, and perhaps especially, when the parties have failed to do so themselves. Kamen, 500 U.S. at 99. Because of this, I agree with the majority‘s assessment that the district court did not violate the principle of party presentation by analyzing this issue under the incompatible-offices doctrine.
I also agree with the majority‘s assessment on the remaining ancillary issues. Namely, I agree that the respondents’ motions to dismiss were not successive and therefore NPRI was not entitled to relief under
However, I part ways with the majority‘s handling of the separation-of-powers issue, and here I side with my dissenting colleague, Justice Herndon. I agree with Justice Herndon that the majority‘s view oversimplifies the determination of whether individual respondents exercise a function of the executive branch. The majority would have us consider whether a legislator creates a separation-of-powers issue merely by maintaining a position with a particular department of government, not by the specific capacity and powers of the individual legislator. The majority places the focus on the department, not on the individual. I find this focus misplaced, and I instead believe that the respondents must be evaluated on a case-by-case basis to determine whether they each individually exercise executive power in their nonlegislative role, thus violating the separation of powers. I agree with my colleague Justice Herndon‘s assessment that “[t]he dispositive question that the majority should have asked
Lee J.