District Court Judge invents reasons to protect member of the government-class

  • Wednesday, July 26, 2017

For Immediate Release
Contact: Michael Schaus, 702-222-0642

CARSON CITY, NV — Ignoring a 2004 AG advisory opinion, a 1967 binding Nevada Supreme Court precedent and the plain language of the state constitution, District Judge James Russell Tuesday dismissed a separation of powers lawsuit against State Senator Heidi Gansert.

“Judge Russell seemed determined to protect a member of the political class, irrespective of what the law says,” commented Center for Justice and Constitutional Litigation Director Joseph Becker.

Representing plaintiff Doug French, The Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation filed the suit in February, alleging Gansert is violating Article 3, Section 1 of Nevada’s State Constitution by occupying a seat in the state legislature while also working in Nevada’s executive branch.

Judge Russell dismissed the lawsuit in a bench ruling, saying in part that because other legislators would be negatively impacted by any potential ruling, the suit should have named every single lawmaker similarly employed in the executive branch as “necessary parties.”

“Essentially, we were told that in order to sue Senator Gansert for a constitutional violation, the Plaintiff must file similar suits against every other potential violator.” explained Becker.

“However, in 2004, the Nevada Supreme Court ruled in Heller v. Nevada Legislature that such is simply not the case.”

Becker further stated that Judge Russell’s dismissal flatly ignored the legal arguments put forward in the case, instead choosing to adopt as law a Legislative Counsel Bureau opinion.

A 1967 Nevada Supreme Court decision, on the other hand, makes it clear that strict adherence to the separation of powers provision is vital to preservation of individual liberty. The court explained that even ministerial function by persons conducted across branches violates Nevada’s separation of powers clause. And a 2004 Attorney General Advisory Opinion authored by then-Attorney General Brian Sandoval advised that attempts to hold positions in more than one constitutional branch, as Gansert is attempting, are patently unconstitutional.

“Rather than following binding legal authority, however, the judge treated a proffered LCB opinion as law,” explained Becker. “Apparently the non-binding LCB opinion held more weight with Judge Russell than the actual text of the Nevada constitution or the Nevada Supreme Court opinions, which interpreted that constitutional provision in Plaintiff’s favor.”

The Judge’s order will likely be filed within the next two weeks, at which time CJCL and Plaintiff Douglas French will determine whether or not to appeal this issue of critical importance to all Nevadans. 

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