Nev. Policy Research Inst., Inc. v. Cannizzaro

• Citation: 507 P.3d 1203
• Decision Date: 21 April 2022
• Docket Number: 82341
• Parties: NEVADA POLICY RESEARCH INSTITUTE, INC., a Nevada Domestic Nonprofit Corporation, Appellant, v. Nicole J. CANNIZZARO, an Individual Engaging in Dual Employment with the Nevada 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 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; 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 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.
• Court: Supreme Court of Nevada

507 P.3d 1203

NEVADA POLICY RESEARCH INSTITUTE, INC., a Nevada Domestic Nonprofit Corporation, Appellant,

v.Nicole J. CANNIZZARO, an Individual Engaging in Dual Employment with the Nevada 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 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; 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 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.

No. 82341

Supreme Court of Nevada.

FILED APRIL 21, 2022

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.

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, HARDESTY, 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 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,¹ Glen Leavitt, Brittney Miller, Selena Torres, James Ohrenschall, Melanie Scheible, Jill Tolles, 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.

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 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 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[,]" "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, 128 N.M. 154, 990 P.2d 1277, 1284 (1999) (internal quotation marks omitted); cf. Comm. for an Effective Judiciary v. State, 209 Mont. 105, 679 P.2d 1223, 1226 (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...