NPRI appeals decision in Separation of Powers case

The Constitution means what it says

By Michael Schaus
  • Tuesday, August 29, 2017

CARSON CITY — The Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation (CJCL) today appealed District Judge James Russell’s decision dismissing a lawsuit against State Senator Heidi Gansert for violating the state constitution’s separation of powers clause.

“Defying the clear language of the Nevada constitution, Nevada Supreme Court precedent, and a 2004 Attorney General Advisory Opinion by then-attorney-general Governor Brian Sandoval, Judge Russell relied upon a non-binding opinion from the Legislative Counsel Bureau in his ruling from the bench—but we believe the actual words of the state constitution should matter more,” explained CJCL 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 as Executive Director of External Relations for the University of Nevada, Reno.

Article 3, Section 1 — the separation-of-powers clause in Nevada's constitution — reads quite clearly:

The powers of the Government of the State of Nevada shall be divided into three separate departments,—the Legislative,—the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others… [Emphasis added.]

“Judge Russell seemed determined to protect a member of the political class, irrespective of what the law says,” commented Becker at the time of the ruling.

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.

“We believe the plain language of the constitution should take precedent over a non-binding LCB opinion, or the preferences of the ruling class,” commented Becker. “And we look forward to the appeals process finally giving further legal clarity on the issue.”

To read more about Judge Russell’s dismissal, click here.

Click here to view a copy of the Notice of Appeal and here to view a copy of the Case Appeal Statement.