Separation of Power Lawsuit: It’s Not Moot Until the Check Clears

(Thomas Mitchell/4TH ST8)

Since most of the news media, though not all, gave it short shrift and one self-styled pundit largely dismissed it as an exercise in futility, the brief filed by NPRI’s Center for Justice and Constitutional Litigation in its separation of powers lawsuit makes some salient points about why the suit is not moot.

No. 1  being: Where’s the canceled check?

The suit, filed by Joseph Becker, the chief legal officer and director of CJCL, seeks to put a stop to the common practice of allowing public employees to serve in the Nevada Legislature, a blatant violation of the state Constitution. In order to assure standing before the courts, Becker used computer technician William Pojunis as the plaintiff for the case, arguing that state Sen. Mo Denis’ unconstitutional employment by the Public Utilities Commission while simultaneously serving in the Legislature was injurious to Pojunis, who could not apply for Denis’ PUC computer tech job.

Shortly after the case was filed, Denis quit the PUC job and filed a motion asking the suit be declared moot.

But one of the measures of relief sought in the original suit asked the court to “Enjoin Defendant DENIS from continuing in his Nevada executive branch employment position (OK, that might be moot, but …) and from retaining any monetary or employment benefits derived from said position from such time as he began serving in the Nevada Legislation.” That’s moot only if Denis wrote a check to the state Treasury for all his salary and benefits for the past 17 years of employment during which he also was a legislator. Show us the canceled check, please.

Becker spells this out in his brief arguing against mootness, writing, “Lastly, Plaintiff POJUNIS’ status as a Nevada resident and taxpayer provide standing for his constitutional claim and Request for Relief thereon that money unconstitutionally expended by way of Defendant DENIS’ salary and benefits should be returned to the Nevada State Treasury.”

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

The release lists those as: The Public-Interest Exception, the Voluntary-Cessation Exception, the Capable-of-Repetition-Yet-Evading-Review Exception, and the Ongoing-Collateral-Legal-Consequences Exception. Read the CJCL Press Release 011012 – NPRI files response in Separation-of-Powers case.

The brief includes a raft of legal citations. Read FINAL POJUNIS OPPOSITION.