For Immediate Release
Contact: Michael Schaus, 702-222-0642
CARSON CITY, NV – Last week, State Senator Heidi Gansert filed a motion to dismiss the lawsuit the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation (CJCL) filed against her for violation of Nevada’s constitutional Separation of Powers clause.
“In her motion to dismiss, Senator Gansert essentially (and unilaterally) rewrites the relevant section of the Nevada constitution, then alleges her rewrite warrants dismissal of the suit,” commented CJCL Director Joseph Becker.
Representing plaintiff Doug French, CJCL filed the suit February 21st, 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. Mr. French seeks the position currently held by Sen. Gansert at the Nevada System of Higher Education.
Gansert’s motion to dismiss asserts that because she does not serve any “sovereign” function of the executive branch in her role at the University, the constitutional separation of powers clause does not apply to her.
“However,” explained Becker, “Article 3, Section 1 of Nevada’s constitution doesn’t require that someone must be serving a ‘sovereign’ function in order for the clause to apply.
“In fact, it actually reads ‘any’ function.”
The full text of Article 3, Section 1 — the separation-of-powers clause in Nevada's constitution — reads:
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.]
“Apparently, Senator Gansert feels that she can simply rewrite the constitution to exclude herself from its constraints,” said Becker.
In addition to ignoring the plain text of the constitution, Gansert’s interpretation of the clause runs counter to that of many legal experts — including now-Governor Brian Sandoval.
In 2004, then-Attorney General Sandoval wrote in an AG Advisory Opinion that the “Nevada Constitution bars any employee from serving in the executive branch of government and serving as a member of the Nevada State Legislature.” (Emphasis added).
“Looking at the text of the constitution — not to mention the AG Advisory Opinion — it seems pretty clear,” said Becker. “She is a person. She’s in the legislature. And, as an employee of the public university, she exercises functions appertaining to the executive branch.
“It might be inconvenient for Senator Gansert, and the many other lawmakers in similar circumstances, but the fact is, the constitution means what it says. Even if she wished it didn’t.”
CJCL will file an opposition to Gansert’s Motion to Dismiss on behalf of Mr. French early next week.