NEV. POLICY RESEARCH INST. v. CANNIZZARO , 2022 NV 28 ( 2022 )

138 Nev, Advance Opinion 2.b
IN THE SUPREME COURT OF THE STATE OF NEVADA
NEVADA POLICY RESEARCH No. 82341
INSTITUTE, INC., A NEVADA
DOMESTIC NONPROFIT
CORPORATION,
Appellant, FILED
vs.
NICOLE J. CANNIZZARO, AN APR 2 1 2022
INDIVIDUAL ENGAGING IN DUAL
EMPLOYMENT WITH THE NEVADA CLEW
STATE SENATE AND CLARK COUNTY
DISTRICT ATTORNEY; JASON
FRIERSON, AN INDIVIDUAL
ENGAGING IN DUAL EMPLOYMENT
WITH THE NEVADA STATE
ASSEMBLY AND CLARK COUNTY
PUBLIC DEFENDER; GLEN LEAVITT,
AN INDIVIDUAL ENGAGING IN DUAL
EMPLOYMENT WITH THE NEVADA
STATE ASSEMBLY AND REGIONAL
TRANSPORTATION COMMISSION;
BRITTNEY MILLER, AN INDWIDUAL
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; JAMES OHRENSCHALL,
AN INDIVIDUAL ENGAGING IN DUAL
EMPLOYMENT WITH THE NEVADA
STATE SENATE AND CLARK COUNTY
PUBLIC DEFENDER; MELANIE
SCHEIBLE, AN INDIVIDUAL
ENGAGING IN DUAL EMPLOYMENT
WITH THE NEVADA STATE SENATE
AND CLARK COUNTY DISTRICT
ATTORNEY; JILL TOLLES, AN
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INDIVIDUAL ENGAGING IN DUAL
EMPLOYMENT WITH THE NEVADA
STATE ASSEMBLY AND UNIVERSITY
OF NEVADA, RENO; SELENA
TORRES, AN INDIVIDUAL ENGAGING
IN DUAL EMPLOYMENT WITH THE
NEVADA STATE ASSEMBLY AND
CLARK COUNTY SCHOOL DISTRICT;
AND THE LEGISLATURE OF THE
STATE OF NEVADA,
Respondents.
Appeal from a district court order dismissing a complaint for
declaratory and injunctive relief. Eighth Judicial District Court, Clark
County; Jim Crockett, Judge.
Reversed and remanded.
Fox Rothschild LLP and Colleen E. McCarty and Deanna L. Forbush, Las
Vegas,
for Appellant.
Legislative Counsel Bureau, Legal Division, and Kevin C. Powers, General
Counsel, Carson City,
for Respondent Legislature of the State of Nevada.
Nevada State College and Berna L. Rhodes-Ford, General Counsel,
Henderson; University of Nevada, Reno, and Gary A. Cardinal, Assistant
General Counsel, Reno,
for Respondents Dina Neal and Jill Tolles.
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Bradley S. Schrager
and Daniel Bravo, Las Vegas,
for Respondents Brittney Miller and Selena Torres.
2
Wiley Petersen and Jonathan D. Blum, Las Vegas,
for Respondents Nicole J. Cannizzaro, Jason Frierson, and Melanie
Scheible.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, HA_RDESTY, J.:
Appellant Nevada Policy Research Institute, Inc. (NPRI) filed a
complaint against respondents, alleging that their dual service as members
of the state Legislature and as employees of the state or local government
violates the Nevada Constitution's separation-of-powers clause. The
district court dismissed the complaint for lack of standing, finding that
NPRI did not allege a personal injury for traditional standing and did not
satisfy the requirements of the public-importance exception to standing.
The issue in this appeal, thus, is whether this case falls within
the public-importance exception, such that NPRI had standing without
needing to show a personal injury. In Schwartz v. Lopez, 132 Nev. 732, 382
P.3d 886 (2016), we recognized that a public-importance exception applies
when an appropriate party sues to protect public funds by raising a
constitutional challenge to a legislative expenditure or appropriation in a
case involving an issue of significant public importance. But the
constitutional challenge at issue here does not involve an expenditure or
appropriation. We thus take this opportunity to limitedly expand the
public-importance exception in Nevada to cases such as this—specifically,
we hold that traditional standing requirements may not apply when an
appropriate party seeks to enforce a public official's compliance with
3
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. The constitutional separation-of-powers
challenge at issue here meets those requirements. Accordingly, we reverse
the district court order dismissing the complaint for lack of standing and
remand for further proceedings.
FACTS
NPRI filed a complaint against respondents Nicole J.
Cannizzaro, Jason Frierson, Glen Leavitt, Brittney Miller, Selena Torres,
James Ohrenschall, Melanie Scheible, Jill ToIles, and Dina Neal, seeking
declaratory and injunctive relief. NPRI sought a declaration that
respondents' dual service as elected members of the Legislature and as paid
employees of state or local government violates the Nevada Constitution's
separation-of-powers clause, and NPRI also sought an injunction
prohibiting respondents from simultaneously holding those positions.
Respondents moved to dismiss the complaint because NPRI did not satisfy
the injury requirement for traditional standing and did not meet the public-
importance exception to the traditional standing requirements.
Specifically, respondents argued that the public-importance exception did
not apply because NPRI did not assert a constitutional challenge to a
specific legislative expenditure or appropriation and NPRI was not an
appropriate party to litigate the matter.
1As requested by the Legislature, we have modified the caption to
reflect that Jason Frierson is a member of the Nevada State Assembly, not
the Nevada State Senate, and we direct the clerk of this court to modify the
caption on this docket to conform to the caption in this opinion.
4
In its opposition to the motions to dismiss, NPRI argued that it
satisfied the traditional standing requirements because it was forced to
expend valuable resources bringing this lawsuit. NPRI also argued that it
satisfied all three requirements for the public-importance standing
exception because respondents violation of the separation-of-powers clause
is an issue of public importance; the Legislature appropriated funds that
paid legislators a daily salary and per diem allowances while the
Legislature was in session, which violated the separation-of-powers clause
for the legislators who were also employed by the executive branch of state
or local government; and NPRI was an appropriate party because it would
be impossible to find individual plaintiffs both willing and able to seek the
legislators' executive-branch positions.
The district court granted the motions to dismiss, concluding
that NPRI failed to satisfy the traditional standing requirements because it
did not allege any particularized harm. The district court further concluded
that the public-importance exception did not apply because NPRI did not
directly challenge a legislative appropriation or expenditure and because
NPRI is not the sole and appropriate party to bring this suit. This appeal
followed.
DISCUSSION
NPRI argues on appeal that the district court erred in finding
that it lacked standing under the public-importance exception announced
in Schwartz v. Lopez, 132 Nev. 732, 382 P.3d 886 (2016). Alternatively,
NPRI argues that this court should expand the public-importance exception
or otherwise waive standing here so that NPRI may litigate the issue of
significant public importance presented in its complaint.
We review whether a party has standing de novo. Arguello v.
Sunset Station, Inc., 127 Nev. 365, 368, 252 P.3d 206, 208 (2011). "The
5
question of standing concerns whether the party seeking relief has a
sufficient interest in the litigation," so as "to ensure the litigant will
vigorously and effectively present his or her case against an adverse party."
Schwartz, 132 Nev. at 743, 382 P.3d at 894. Thus, to have standing to
challenge an unconstitutional act, a plaintiff generally must suffer a
personal injury traceable to that act "and not merely a general interest that
is common to all members of the public." Id.; see also Morency v. State, Dep't
of Educ., 137 Nev., Adv. Op. 63, 496 P.3d 584, 588 (2021). However, in
Schwartz, we recognized a public-importance exception to the personal-
injury requirement. We held that in appropriate cases, "we may grant
standing to a Nevada citizen to raise constitutional challenges to legislative
expenditures or appropriations without a showing of a special or personal
injury." 132 Nev. at 743, 382 P.3d at 894. As set forth in Schwartz, this
exception applies only when the plaintiff demonstrates that (1) the case
presents "an issue of significant public importance," (2) the case involves "a
challenge to a legislative expenditure or appropriation on the basis that it
violates a specific provision of the Nevada Constitution," and (3) the
plaintiff is an "appropriate" party to bring the action. Id. at 743, 382 P.3d
at 894-95.
NPRI did not meet the second requirement of the public-
importance exception delineated in Schwartz, as it did not bring "a
challenge to a legislative expenditure or appropriation on the basis that it
violates a specific provision of the Nevada Constitution." NPRI asks us to
nevertheless conclude that it has standing based on the public importance
of the separation-of-powers issue. We are cognizant that Schwartz requires
all three of the public-importance exception factors to be met for the
exception to apply. 132 Nev. at 743, 382 P.3d at 984. However, unlike in
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Schwartz, we are now faced with a case that presents a constitutionally
based challenge, but not to a legislative expenditure or appropriation.
We recognize, as other jurisdictions have, that in limited
circumstances this court must use its discretion to exercise jurisdiction in
cases involving separation-of-powers questions "as a matter of controlling
necessity[J" "because the conduct at issue affects, in a fundamental way,
the sovereignty of the state, its franchises or prerogatives, or the liberties
of its people." State ex rel. Coll v. Johnson, 990 P.2d 1277, 1284 (N.M. 1999)
(internal quotation marks omitted); cf. Comm. for an Effective Judiciary v.
State, 679 P.2d 1223, 1226 (Mont. 1984) (noting "that standing questions
must be viewed in part in light of discretionary doctrines aimed at prudently
managing judicial review of the legality of public acts" (internal quotation
marks omitted)). And, where there are "clear threats to the essential nature
of state government guaranteed to . . . citizens under their [c]onstitution—
[specifically,] a government in which the three distinct
departments, . . . legislative, executive, and judicial, remain within the
bounds of their constitutional powers," Johnson, 990 P.2d at 1284 (internal
quotation marks omitted)—the ability of an appropriate party to obtain
judicial review of a public official's actions serves an essential role in
maintaining the constitutional structure of the state government and
preventing government actors from either overstepping or abdicating their
public duties. See, e.g., Thompson v. Heineman, 857 N.W.2d 731, 752 (Neb.
2015) ("[W]ithout an exception for matters of great public concern, electêd
representatives could flout constitutional violations with impunity. . . . The
exception for matters of great public concern ensures that no law or public
official is placed above our constitution."); ACLU of N.M. v. City of
Albuquerque, 188 P.3d 1222, 1233 (N.M. 2008) (citing Johnson, 990 P.2d at
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1284, and recognizing the "great public importance of such cases); S.C.
Pub. Interest Found. v. S.C. Dep't of Transp., 804 S.E.2d 854, 858 (S.C. 2017)
(stating that "public importance standing" is intended "to allow interested
citizens a right of action in our judicial system when issues are of significant
public importance to ensure accountability and the concomitant integrity of
government action" (alterations, omission, and internal quotation marks
omitted)). Consequently, courts have been willing to confer public
importance standing in cases concerning "citizens interest in their form of
government," Thompson, 857 N.W.2d at 751; Johnson, 990 P.2d at 1284,
that are likely to recur and for which there is a need for future guidance, cf.
Sears v. Hull, 961 P.2d 1013, 1019 (Ariz. 1998); S.C. Pub. Interest Found.,
804 S.E.2d at 859. So too do these courts recognize that the doctrine must
be kept in check, lest they paradoxically expand judicial jurisdiction beyond
the boundaries of their respective states' separation-of-powers clauses in
the supposed interest of those same clauses and at the expense of the
political process and franchise. See Horner v. Curry, 125 N.E.3d 584, 595
(Ind. 2019); see also State ex rel. Ohio Acad. of Trial Lawyers v. Sheward,
715 N.E.2d 1062, 1080 (Ohio 1999) ("The concept of standing embodies
general concerns about how courts should function in a democratic system
of government.").
With these countervailing considerations in mind, we strike a
balance here, expanding the public-importance exception articulated in
Schwartz to the instant suit and those of similar caliber, where a plaintiff
seeks vindication of the Nevada Constitution's separation-of-powers clause,
but still limiting the exception's reach to extraordinary cases even within
that category. Sloan v. Sanford, 593 S.E.2d 470, 472 (S.C. 2004) (noting
that while "Eclitizens must be afforded access to the judicial process to
8
address alleged injustices[J" "standing cannot be granted to every
individual who has a grievance against a public offkiar). Thus, the public-
importance doctrine may apply both where a plaintiff seeks to protect public
funds or where, as here, the plaintiff seeks to enforce a public official's
compliance with a public duty pursuant to the separation-of-powers clause,
but only where an appropriate party seeks enforcement of that right, the
issue is likely to recur, and it requires judicial resolution for future
guidance. In such cases, we may confer standing under the public-
importance exception.2
We conclude that this is one of those rare cases. NPRI alleges
that respondents dual service as legislators and employees in the state
executive branch and local government violates the Nevada Constitution's
separation-of-powers clause, which divides the powers of the state
government into three separate departments and prohibits "persons
charged with the exercise of powers properly belonging to one of these
departments [from] exercisEing] any functions, appertaining to either of the
others, except in the cases expressly directed or permitted in this
constitution." Nev. Const. art. 3, § 1(1). This court has recognized
separation of powers as "probably the most important single principle of
government declaring and guaranteeing the liberties of the people." Heller
v. Legislature, 120 Nev. 456, 466, 93 P.3d 746, 753 (2004) (quoting Galloway
v. Truesdell, 83 Nev. 13, 18, 422 P.2d 237, 241 (1967)). Thus, the question
2We further hold that a party who brings an action for declaratory
relief and satisfies these requirements for the public-importance exception
to standing establishes a legally protectable interest as required to obtain
declaratory relief. See MB Am., Inc. v. Alaska Pac. Leasing Co., 132 Nev.
78, 86, 367 P.3d 1286, 1.291 (2016) (establishing requirements for a court to
grant declaratory relief).
9
of whether respondents dual service violates the separation-of-powers
clause is one that implicates specific conduct of state officials and a matter
of great and equal concern to all Nevada citizens. Johnson, 990 P.2d at 1284
(limiting exception to questions with "constitutional moment"); Haik v.
Jones, 427 P.3d 1155, 1161 (Utah 2018) (noting that exception has been
limited to questions "where a large number of people would be affected by
the outcome (internal quotation marks omitted)).
Our refusal to grant standing under these circumstances could
result in serious public injury—either by the continued allegedly unlawful
service of the above-named officials, or by the refusal of qualified persons to
run for office for fear of acting unconstitutionally—because this unsettled
issue continues to arise. See Sheward, 715 N.E.2d at 1083 (limiting
application of the public-importance exception to circumstances where
serious public injury would result otherwise). Indeed, this court has
previously been asked to decide a similar question regarding whether state
and local government employees could simultaneously serve as members in
the Legislature. See Heller, 120 Nev. at 466, 93 P.3d at 753. In Heller, the
Nevada Secretary of State asked this court to declare that dual service
violates the separation-of-powers clause and to order the Legislature to oust
those legislators who were also employed by the state executive branch and
local governments. Id. This court declined to reach the issue, finding that
the Secretary lacked standing and also that the separation-of-powers clause
barred the relief sought because only the Legislature may judge the
qualifications of its members.3 Id. at 460-62, 466-72, 93 P.3d at 749-50, 752-
In Heller, this court specifically noted that the dual service issue
3
would be justiciable if it were instead "raised as a separation-of-powers
challenge to legislators working in the executive branch, as the
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56. The dual service issue has since been raised in other court cases, but no
court has addressed it on the merits for a variety of reasons.4 See, e.g.,
Pojunis v. Denis, No. 60554, 2014 WL 7188221 (Nev. Dec. 16, 2014) (Order
of Affirmance) (affirming dismissal of complaint based on lack of standing
and mootness); Indep. Am. Party of Nev. v. Titus, Docket No. 43038 (Order
Denying Petition for Writ of Mandamus, July 14, 2004) (denying petition
based on lack of standing).
The greater the need for future guidance, the greater "the
extent to which public interest would be enhanced by reviewing the case."
Snohomish County v. Anderson, 881 P.2d 240, 244 (Wash. 1994) (emphasis
omitted); McConkey v. Van Hollen, 783 N.W.2d 855, 861 (Wis. 2010)
(applying the doctrine because "as a law development court, we think it
prudent that the citizens of Wisconsin have this important issue of
constitutional law resolved"). And here, future guidance is necessary
because of the lack of judicial interpretation of Nevada's separation-of-
powers clause, this issues recurrence over an extended period, and the
potential impact that resolution of this issue will have on state government
and those who seek public office. See S.C. Pub. Interest Found., 804 S.E.2d
at 859 (concluding that "future guidance is needed since there is no judicial
qualifications of legislators employed in the executive branch are not
constitutionally reserved to that branch." Id. at 472, 93 P.3d at 757.
41n addition, this issue has been the subject of opinions by the Nevada
Attorney General and the Nevada Legislative Counsel Bureau on at least
six prior occasions. See 2004-03 Op. Att'y Gen. 17 & n.1 (2004) (citing five
earlier opinions concerning dual service). These opinions are not binding
on this court, see Clark Cty. Office of Coroner I Med. Exam'r v. Las Vegas
Review-Journal, 136 Nev. 44, 57, 458 P.3d 1048, 1058 (2020), but serve to
demonstrate the recurring and unresolved nature of the dual service issue.
11
guidance addressing the issue and there is evidence SCDOT will inspect
this type of property in the future). This need for future guidance in the
separation-of-powers arena "gives meaning to an issue [that] transcends a
purely private matter and rises to the level of public importance," ATC S.,
Inc. v. Charleston County, 669 S.E.2d 337, 341 (S.C. 2008), alleviating
concerns of a potential flood of spurious litigation claims against public
officials better addressed via the democratic process. See Haik, 427 P.3d at
1160-61.
Furthermore, we conclude that NPRI is an appropriate party to
challenge the constitutionality of respondents dual service. See Schwartz,
132 Nev. at 743, 382 P.3d at 894-95 (clarifying that an appropriate party
"mean [s] that there is no one else in a better position who will likely bring
an action and that the plaintiff is capable of fully advocating his or her
position in court"). Expanding on the discussion in Schwartz, we agree with
our sister states that "[a]ppropriateness has three main facets: the plaintiff
must not be a 'sham plaintiff with no true adversity of interest; he or she
must be capable of competently advocating his or her position; and he or she
may still be denied standing if 'there is a plaintiff more directly affected by
the challenged conduct in question who has or is likely to bring suit,"' which
ensures that the plaintiff will serve as a true and strong adversary. Baxley
v. State, 958 P.2d 422, 428 (Alaska 1998) (quoting Trs. for Alaska v. State,
736 P.2d 324, 329 (Alaska 1987)); see also Hunsucker v. Fallin, 408 P.3d
599, 602 (Okla. 2017) (limiting doctrine to cases where there is "lively
conflict between antagonistic demands" (internal quotation marks
omitted)); McConkey, 783 N.W.2d at 860-61 (applying doctrine where
plaintiff had "competently framed the issues and zealously argued his case,"
and "a different plaintiff would not enhance [the court's] understandine).
12
NPRI is a nonprofit corporation whose primary missions are to
conduct public policy research and advocate for policies that protect
individual liberties and promote transparency, accountability, and
efficiency in government. NPRI thus is not a "sham plaintiff —its
"sincerity" in challenging the legislators dual employment "is
unquestioned." See Trs. for Alaska, 736 P.2d at 330 (concluding the
plaintiffs were appropriate parties because "Whey are not sham plaintiffs;
their sincerity in opposing the states mineral disposition system is
unquestionee). NPRI has demonstrated "it has 'the interest necessary to
effectively assist the court in developing and reviewing all relevant legal
and factual questions.'" Utah Chapter of Sierra Club v. Utah Air Quality
Bd., 148 P.3d 960, 972 (Utah 2006) (quoting Jenkins v. Swan, 675 P.2d
1145, 1150 (Utah 1983)).
Moreover, it is represented by counsel who have competently
advocated NPRrs position and named as defendants all of the individuals
who currently serve in dual roles. See Trs. for Alaska, 736 P.2d at 329-30,
330 n.9 (explaining that "standing may be denied if the plaintiff appears to
be incapable, for economic or other reasons, of competently advocating the
position it has asserted"). And as we recognized in Heller, the declaratory
relief action NPRI filed in district court is an appropriate proceeding in
which to resolve the dual service issue, as it will allow "a full record [to] be
developed regarding the nature and scope of [respondente] employment
duties." 120 Nev. at 467, 93 P.3d at 754 (quoting State v. Evans, 735 P.2d
29, 33 (Utah 1987)); see also id. at 472-73, 93 P.3d at 757.
NPRI also has demonstrated that the dual service issue is
unlikely to be properly raised by any other parties with greater interest.
The mere possibility that other individuals may have a more direct interest
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in bringing a challenge to respondents dual service does not mean that
NPRI is an inappropriate party to do so, particularly as no such individual
has filed suit or will likely do so in the future. See Trs. for Alaska, 736 P.2d
at 330 (holding "the mere possibility that the Attorney General may sue
does not mean that appellants are inappropriate plaintiffs" and stating "the
crucial inquiry is whether the more directly concerned potential plaintiff
has sued or seems likely to sue in the foreseeable future); see also Utah
Chapter of Sierra Club, 148 P.3d at 972-73 (recognizing that more than one
party may be appropriate and a party is not required to have the greatest
interest to have standing). Because we conclude that NPRI has
demonstrated that it seeks enforcement of the separation-of-powers clause
as applied to public officials and NPRI has the ability to vigorously litigate
this important, recurring issue, we elect to confer standing on NPRI to bring
this challenge.
CONCLUSION
Though the public-importance exception to standing that we
announced in Schwartz requires that the plaintiff challenge a legislative
expenditure or appropriation as violating a specific provision of the Nevada
Constitution, we may apply the public-importance exception in cases where
a party seeks to protect the essential nature of "a government in which the
three distinct departments, . . . legislative, executive, and judicial, remain
within the bounds of their constitutional powers," Johnson, 990 P.2d at
1284 (internal quotation marks omitted), as against a public official, even
when this requirement is not met. We elect to apply the public-importance
exception here and confer standing on NPRI because it is an appropriate
party and the issue in this case implicates separation of powers under our
state constitution, is likely to recur, and is of such significant public
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reverse the district court order dismissing NPRI's complaint and remand
for further proceedings on its claims.5
J.
Hardesty
We concur:
, C.J. Al4C4a) J.
Parraguirre Stiglich
i )
, J. ‘L zeix.64 J.
Cadish Silver
Herndon
5 NPRI also argues that the district court erred in granting the
Legislature's motion to intervene and in denying NPRI's motion to
disqualify the Nevada System of Higher Education's official attorneys from
representing respondents. We conclude that NPRI waived its argument to
the district court's grant of permissive intervention, see Khoury v.
Seastrand, 132 Nev. 520, 530 n.2, 377 P.3d 81, 88 n.2 (2016) (concluding an
appellant waives an argument by raising it for the first time in his or her
reply brief), and fails to demonstrate any abuse of discretion by the district
court in denying the motion to disqualify counsel, see State ex rel.
Cannizzaro v. First Judicial Dist. Court, 136 Nev. 315, 317, 466 P.3d 529,
531 (2020).
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