Senator Megan Hunt Nebraska Legislature, 041621 NEAGO, AGO 21-006

• Case Date: April 16, 2021
• Court: Nebraska

Senator Megan Hunt Nebraska Legislature AGO 21-006 No. 21-006 Nebraska Attorney General Opinion State of Nebraska office of the Attorney General April 16, 2021          SUBJECT: Constitutionality Under the Separation of Powers Clause of Service as a Member of Both the State Board of Health and a Judicial Nominating Commission          REQUESTED BY: Senator Megan Hunt Nebraska Legislature          WRITTEN BY: Douglas J. Peterson, Attorney General Leslie S. Donley, Assistant Attorney General          You have requested an opinion of the Attorney General relating to the recent appointment of Robert (Bud) Synhorst to the State Board of Health. You indicate in your opinion request letter that in addition to his appointment to the State Board of Health, Mr. Synhorst also serves on the Judicial Nominating Commission-Third District-District Court, which you assert "is an agency, or a component of, the judicial branch of our state government" under art. V, § 21 of the Nebraska Constitution.          You state that in State ex rel. Spire v. Conway,'1 "the Nebraska Supreme Court held ... that a state senator could not hold a teaching position at Wayne State College while serving as a member of the Legislature because the college was operating under the auspices of the Board of Regents of the University of Nebraska," which the court interpreted to be "an executive agency and part of the executive branch."2 You further state that under Conway, "[t]he Court reasoned that our state constitution's separation of powers provision ... prohibits certain person[s] from serving two branches of government concurrently." Thus, as a member of the legislative branch, Conway could not continue to serve in both the Legislature and as an assistant professor at Wayne State College.          You assert that "Mr. Synhorst is now concurrently serving as a member of comm¡ss¡on[s] in the executive and the judicial branch of government." Based on the foregoing, you have posed the following questions:

1. How is this "dual service" appointment consistent with the Conway prohibition against concurrent service in two branches of government?

2. If it is your opinion that Mr. Synhorst's dual service on these commissions is improper, what is the remedy for resolving this unconstitutional arrangement?

3. Section 71-2603 provides for a removal process of Board of Health members for various reasons, including the "failure to maintain the qualifications for the position for which appointed." Would removal of Mr. Synhorst from the Board of Health be the remedy for resolving the conflict with Conway?

4. Or. would the Legislature's most recent confirmation of Mr. Synhorst to the Board of Health be given deference? If so, and stated another way, is there a process available for removal from Mr. Synhorst from the Judicial Nominating Commission [that would] be the preferred remedy?

         You have requested guidance on these questions, "and any other related subjects you identify, regarding the issue of the predicament of Mr. Synhorst's dual service on the above-referenced commissions."          ANALYSIS          In Op. Att'y Gen. No. 157 (December 24, 1985), the Attorney General clarified the policies relating to the issuance of opinions to members of the Legislature:

In the case of requests from members of the Legislature, we have limited the issuance of such opinions for "valid legislative purposes" only. The Legislature's purpose is, of course, to make, alter or repeal laws. See, Nebraska Public Power District v. City of York, 212 Neb. 747, 326 N.W.2d 22 (1982). It is the function of the executive branch to apply and enforce those laws, and the judicial branch to interpret those laws. Consequently, it has been and continues to be the policy of the Attorney General that we issue legal opinions to state legislators which pertain only to pending or proposed legislation. In this regard it is also our policy to decline opinion requests from legislators concerning the constitutionality, or seeking interpretations, of existing statutes. . . .

There are two exceptions to this policy. The first exception is where the interpretation of an existing statute is directly related to the proposed or pending legislation, or in turn where the proposed legislation is dependent upon such an interpretation. The second exception is where the

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