Nevada separation of powers case long overdue for scrutiny by state Supreme Court

I’ve foolishly lost a few bets trying to predict the outcome of Nevada court decisions. That’s what makes me nervous about the lawsuit that accuses state Sen. Heidi Gansert of violating the state constitution’s separation of powers clause.

The Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation has sued Gansert, a Reno Republican, because she works as executive assistant to the president of the University of Nevada, Reno while at the same time serving in the Nevada Legislature.

According to the lawsuit — filed on behalf of Las Vegas resident Doug French — the dual service violates the separation of powers clause in the Nevada Constitution, which says nobody charged with the powers of one branch of government may exercise the functions of the others.

Clearly, Gansert exercises the powers of the legislative branch (which is not in dispute) while also exercising the functions of the executive (which her lawyers deny). French says he wants her state job, which she shouldn’t hold because of the constitutional conflict.

Gansert’s reply maintains she’s not a public official, but merely a public employee. Only the Board of Regents or a university president may exercise the “functions” of the executive, Gansert’s attorneys contend.

That’s similar to an opinion produced by the Legislative Counsel Bureau, which maintains constitutional officers or high-level state officials are capable of exercising the sovereign functions of the executive branch, but regular employees are not.

If the case is ever debated on its merits, judges might turn to the dictionary for help, as a canon of legislative interpretation holds that words should be given their plain and ordinary meaning. Webster’s says “function” means “the normal or characteristic action of anything, especially one of the specialized actions of a system; a special duty or performance required in the course of work or activity; occupation or employment.”

Hmmm. Interesting.

But this case may never get to that stage.

That’s because university lawyers (defending Gansert) contend French has no right to bring the lawsuit in the first place. He lives 400 miles away from Reno, and has never applied for her UNR position, they contend. (That’s true, since the job isn’t currently open because Gansert holds it.)

Not only that, lawyers say French can only speculate that if Gansert left, the university would fill the job, or that he’d be qualified for it, or that he’d even be granted an interview or hired. “These numerous assumptions demonstrate that the claimed injury is simply too speculative or remote to rise to the level of an actual or personal injury,” they write.

And even if it did, the university’s lawyers say, courts could not install French in Gansert’s job by judicial fiat.

It’s frustrating, because French’s claim to Gansert’s job was made in order to establish his standing to challenge her right to hold both positions, but is now being used to undercut the underlying claim.

As a result, there’s no actual controversy on which to proceed, Gansert’s lawyers say.

And as tantalizing and interesting as the separation of powers question is, judges in Nevada are loath to reach conclusions when they’re not compelled to do so.

There may yet be a way to get the matter before the court, however: NPRI could plead the newly created “public importance exception” to the rules of standing that emerged in a separate lawsuit over Education Savings Accounts in September. Under that ruling, a person would not have to show a particular injury (say, being denied a job you want) in order to bring a constitutional challenge to state spending (say, someone’s salary).

We’ll have to wait to find out if the courts might allow the lawsuit to proceed on those grounds. Generally, if judges want to hear a case, they can find a way to do so, but the opposite is equally true.

But a judicial interpretation of the separation of powers clause is long overdue in Nevada. Let’s hope this is the vehicle that gets us there.

Contact Steve Sebelius at SSebelius@reviewjournal.com or 702-387-5276. Follow @SteveSebelius on Twitter.