Throughout the past few years, tensions between the executive and legislative branches have been on the increase. The constitutionality of the Interim Finance Committee (IFC) has been questioned by the Governor. The IFC has been fiercely defended by the Legislature. Those rooting for a legal showdown earlier in the year were disappointed as the constitutional conflict took a back seat to a special session and the primary election.
But now, the conflict is boiling up again and the dynamics between the executive and legislative branches have changed dramatically from just a few months ago. A Governor with nothing to lose is squaring off with a Legislature disinclined to pay much heed to the final six months of the Governor's term. In the crossfire are the Department of Business and Industry and the Department of Public Safety, who have been directed to disregard IFC requests for information.
The Legislature is now threatening the issuance of subpoenas, and hinting that fines and even imprisonment could be in store for those who fail to comply. If the executive branch stands its ground, the legislature will either need to follow through or blink and back down. And if the matter does proceed to a legal standoff, there will be a host of legal issues rekindling another long-standing conflict in state government between the Governor and the Attorney General.
The Attorney General has already declined to undertake litigation against federal health care reform as requested by the Governor. As a result, the Governor retained outside volunteer counsel to represent the state. It seems a safe bet that the Attorney General would similarly decline any gubernatorial directive to challenge the constitutionality of the IFC. There is always the possibility that the Governor could seek outside counsel again to bring suit. But there might be another way. If state agencies are sued for failure to comply with a subpoena, and those state agencies are typically represented by the Attorney General, what happens then? The Attorney General is required by NRS 41.0339 to defend state employees sued in a civil action from actions arising out of the course and scope of their official duties, and the contempt of court statute is a civil statute. Could the Attorney General be required by law to challenge the legality of the subpoenas in the process of defending the state agencies? Could the Attorney General defend against the subpoenas without implicating the fundamental authority of the IFC? Might the Attorney General refuse to defend the state employees at all?
One way or another, we should know soon whether the conflict is heading to the courts or whether the situation will be defused in some fashion. One thing is for sure, the Governor has not made things easy on the Office of the Attorney General.
