Under the separation-of-powers provision of the Nevada Constitution, one department of the State Government may not exercise powers properly belonging to another department of the State Government “except in the cases expressly directed or permitted in this constitution.” (Nev. Const. Art. 3, § 1) As a general rule under the separation-of-powers doctrine, because the question of whether a regulation adopted by an executive agency exceeds its statutory authority or is inconsistent with legislative intent presents a question of statutory interpretation, the power to resolve that question of statutory interpretation and determine whether to invalidate or nullify the regulation is usually regarded as judicial power because “it is emphatically the province and duty of the judicial department to say what the law is.” (Nevadans for Nev. v. Beers, 122 Nev. 930, 943 n.20 (2006) (quoting Marbury v. Madison, 3 U.S. 137, 177-78 (1803)); Berkson v. LePome, 126 Nev. 492, 499 (2010) (explaining that “[t]o declare what the law is or has been is judicial power; to declare what the law shall be is legislative.” (quoting 1 Thomas M. Cooley, Constitutional Limitations 191 (8th ed. 1927)); Silver State Elec. Supply Co. v. State ex rel. Dep't of Tax'n, 123 Nev. 80, 84 (2007) (“appeals involving interpretation of a statute or regulation present questions of law subject to our independent review.”))
For example, in applying the separation-of-powers doctrine to the Federal Government and other state governments, courts have found that the separation-of-powers doctrine ordinarily prohibits legislative committees or other legislative bodies from exercising the power to nullify a regulation adopted by an executive agency on the basis that the regulation exceeds the statutory authority of the agency or is inconsistent with legislative intent, unless Congress or the state legislature passes a law that expressly nullifies the regulation or revises or repeals the agency's statutory authority. (I.N.S. v. Chadha, 462 U.S. 919, 953 n.16 (1983); State v. A.L.I.V.E. Voluntary, 606 P.2d 769, 772-79 (Alaska 1980); Legis. Research Comm'n v. Brown, 664 S.W.2d 907, 917-20 (Ky. 1984); Blank v. Dep't of Corr., 611 N.W.2d 530, 537-39 (Mich. 2000); General Assembly of N.J. v. Byrne, 448 A.2d 438, 443-49 (N.J. 1982); State ex rel. Barker v. Manchin, 279 S.E.2d 622, 630-36 (W. Va. 1981)) However, in Nevada, the voters in 1996 approved a constitutional amendment to Nevada's separation-of-powers provision which expressly empowers the Legislature to provide by law for legislative agencies and legislative bodies composed of members of the Senate and Assembly to suspend or nullify regulations adopted by executive agencies on the basis that the regulations exceed the statutory authority of the agencies or are inconsistent with legislative intent. The constitutional amendment provides that if the Legislature authorizes the adoption of regulations by executive agencies which bind persons outside the agencies, the Legislature is authorized to enact laws providing for: (1) the review of such regulations by a legislative agency before their effective date to determine whether each such regulation is within the statutory authority for its adoption; (2) the suspension by a legislative agency of any such regulation which appears to exceed the statutory authority for its adoption until the regulation is reviewed by a legislative body composed of members of the Senate and Assembly; and (3) the nullification of any such regulation by a majority vote of a legislative body composed of members of the Senate and Assembly. (Nev. Const. Art. 3, § 1) When the constitutional amendment was presented to the voters, the ballot materials explained that its purpose was to ensure that the Legislative Department had the specific constitutional power to suspend or nullify regulations adopted by executive agencies which exceed the statutory authority granted by the Legislature when it passed the laws that authorized the agencies to adopt the regulations. (State of Nevada Ballot Questions 1996, Question No. 5, at pp. 1-2 (Nev. Sec'y of State 1996)) When the Nevada Constitution expressly grants specific powers to the Legislative Department, the other departments may not infringe upon the exercise of those powers out of respect for an equal and coordinate department of government. (Heller v. Legislature, 120 Nev. 456, 466-72 (2004); Comm'n on Ethics v. Hardy, 125 Nev. 285, 291-94 (2009)) For example, the Nevada Supreme Court has determined that because the Nevada Constitution expressly grants to each legislative House the specific power to “judge” the qualifications, returns and elections of its own members, the constitutional assignment of that power to the Legislative Department “insulates a legislator's qualifications to hold office from judicial review. In other words, a legislative body's decision to admit or expel a member is almost unreviewable by the courts.” (Heller v. Legislature, 120 Nev. 456, 466-67 (2004)) Because Nevada's voters expressly granted specific constitutional power to the Legislature to provide by law for legislative agencies and legislative bodies composed of members of the Senate and Assembly to suspend or nullify regulations adopted by executive agencies, the other departments may not infringe upon the exercise of that power out of respect for an equal and coordinate department of government. Section 1 of this bill expresses the Legislature's findings and declaration regarding its exercise of its expressly granted and specific constitutional power to suspend or nullify such regulations. In exercising its expressly granted and specific constitutional power regarding agency regulations, the Legislature has enacted provisions of the Nevada Administrative Procedure Act which set forth the procedures for the adoption of emergency, temporary and permanent regulations by certain executive agencies. (NRS 233B.0395-233B.120) Under existing law, with limited exceptions, the Legislative Commission or the Subcommittee to Review Regulations of the Legislative Commission has the authority to review and to approve or object to certain temporary or permanent regulations before those regulations become effective. (NRS 233B.067-233B.070) Section 3 of this bill authorizes a person to submit a petition requesting the Legislative Commission to review whether a permanent or temporary regulation adopted pursuant to the Nevada Administrative Procedure Act should be suspended or nullified because the regulation: (1) exceeds the statutory authority for its adoption; (2) is inconsistent with the intent of the Legislature in granting the statutory authority for its adoption; or (3) is not being administered or interpreted in a manner that is consistent with the agency's stated intent when adopting the regulation or the agency's stated intent during the review and approval of the regulation by the Legislative Commission. Section 3 also: (1) establishes procedures for the review and consideration of such petitions; (2) authorizes the Legislative Commission to suspend or nullify a regulation based on certain grounds raised in such petitions; and (3) requires certain actions to be taken after a suspension or nullification. Additionally, sections 3 and 5 of this bill preclude judicial review of any action taken or determination made by the Legislative Commission in exercising its powers to review, object to, suspend or nullify a regulation. Sections 5, 10, 11, 15 and 16 of this bill make conforming changes relating to the authority of the Legislative Commission to suspend or nullify a regulation. Section 4 of this bill requires the Legislative Commission to adopt such regulations as are necessary to carry out the provisions of the Nevada Administrative Procedure Act governing administrative regulations. Section 4 also requires the regulations to: (1) include procedural standards that provide interested persons with an opportunity to comment on issues raised in a petition and whether the regulation should be suspended or nullified; and (2) be included in the Nevada Administrative Code. Existing law excludes the application of certain agency policies to a person with sufficient prior actual notice of the policy from the definition of “regulation” for the purposes of the Nevada Administrative Procedure Act. (NRS 233B.038) Section 6 of this bill removes this exception, which has the effect of requiring such policies to be adopted in a regulation under the Nevada Administrative Procedure Act. Existing law ratifies the Nevada Administrative Code as revised or supplemented before May 15, 1987. (NRS 233B.0395) Section 7 of this bill ratifies the Code as revised or supplemented before February 3, 2025. Existing law requires an agency to adopt a proposed regulation not later than 2 years after the proposed regulation is submitted to the Legislative Counsel. (NRS 233B.040) Section 8 of this bill requires an agency to also submit the proposed regulation to the Legislative Commission for review within the same 2-year period. Existing law requires an agency to hold an oral public hearing on a proposed regulation if an oral hearing is requested by certain persons and the proposed regulation is substantive. (NRS 233B.061) Section 9 of this bill eliminates the requirement regarding the substantiveness of the regulation, which has the effect of requiring an oral hearing on all proposed regulations. Under existing law, the Legislative Counsel is required to prepare and publish a Register of Administrative Regulations, which includes information relating to adopted permanent regulations. (NRS 233B.0653) Section 12 of this bill eliminates the requirement that the Legislative Counsel publish paper copies of the Register and instead requires the Legislative Counsel to publish the Register electronically on the public Internet website of the Legislature. An emergency regulation becomes effective when certain documents are filed with the Secretary of State. (NRS 233B.070) Sections 10 and 14 of this bill require a copy of the written statement of the emergency endorsed by the Governor to be included with the information that is required be filed with the Secretary of State before an emergency regulation becomes effective. Existing law authorizes a plaintiff to bring an action for declaratory judgment on an allegation that a regulation, or its proposed application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. Under existing law, a court is required to declare the regulation invalid if it finds that the regulation violates constitutional or statutory provisions or exceeds the statutory authority of the agency that adopted the regulation. (NRS 233B.110) In determining whether a regulation violates statutory provisions or exceeds the statutory authority of an agency, the Nevada Supreme Court has held that “courts should not substitute their own construction of a statutory provision for a reasonable interpretation made by an agency.” (Collins Disc. Liquors & Vending v. State, Dep't of Tax'n, 106 Nev. 766, 768 (1990)) The Nevada Supreme Court has also held that “the interpretation by the agency charged with administering a statute is persuasive, and that great deference should be given to that interpretation if it is within the language of the statute.” (Nev. Tax Comm'n v. Nev. Cement Co., 117 Nev. 960, 968-69 (2001)) However, because the Nevada Administrative Procedure Act does not include any specific provisions regarding whether any deference should be given to the Legislative Commission's approval of a regulation, the Nevada Supreme Court has declined to give any deference to the Legislative Commission's approval of the regulation, even though such approval includes the Legislative Commission's legal determination that the regulation conforms to the statutory authority pursuant to which it was adopted and carries out the Legislature's intent in granting that authority. (Killebrew v. State ex rel. Donahue, 139 Nev. Adv. Op. No. 43, 535 P.3d 1167, 1173 n.4 (2023) (“The Legislative Commission, as amicus curiae, urges us to give deference to its approval of the regulation and to review whether the regulation is reasonable as a matter of law. We decline the invitation to alter our statutorily mandated review of a regulation.”)) Section 16 amends the Nevada Administrative Procedure Act to provide that in any action where the court must determine whether a regulation violates statutory provisions or exceeds the statutory authority of an agency and the Legislative Commission or the Subcommittee to Review Regulations has approved the regulation under the Nevada Administrative Procedure Act, the court: (1) must not substitute its judgment for the legal determination of the Legislative Commission or the Subcommittee to Review Regulations, made through its legislative approval of the regulation, that the regulation conforms to the statutory authority pursuant to which it was adopted and carries out the Legislature's intent in granting that authority; (2) must make every reasonable effort and indulge in every reasonable presumption to uphold that legislative legal determination and must resolve any ambiguity, uncertainty or doubt against the plaintiff and in favor of that legislative legal determination; and (3) must give great weight and deference to that legislative legal determination and must uphold that legislative legal determination if it is reasonable as a matter of law. Section 13 of this bill makes conforming changes.

Statutes affected:
As Introduced: 233B.020, 233B.038, 233B.0395, 233B.040, 233B.061, 233B.0613, 233B.0617, 233B.0653, 233B.067, 233B.070, 233B.100, 233B.110
BDR: 233B.020, 233B.038, 233B.0395, 233B.040, 233B.061, 233B.0613, 233B.0617, 233B.0653, 233B.067, 233B.070, 233B.100, 233B.110