Three views on Nevada’s constitutional separation of powers

Don’t quit, Sen. Gansert! Your state needs you!

The Nevada Policy Research Institute sued state Sen. Heidi Gansert, R-Reno, last week, claiming her service in the Senate and her full-time job as assistant to the president of UNR are incompatible under the separation-of-powers clause.

That’s the part of the Nevada Constitution which 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, except in the cases expressly directed or permitted in this Constitution.”

Because Gansert purportedly exercises the functions of the executive in her full-time job, she can’t exercise the powers of the legislative, NPRI says.

Gansert (and Democratic state Sen. Aaron Ford, D-Las Vegas) both called the NPRI lawsuit meritless, but it raises compelling constitutional questions. The last time NPRI sued — in 2011 — the target of that action resigned. That’s why it’s so important for Gansert to fight — so Nevadans can finally get the courts to confront the issue.

In the meantime, here are the three leading schools of thought on separation of powers in Nevada.

The Legislative Counsel Bureau view. The non-partisan staff of the Legislature opined that the separation-of-powers clause prevents only constitutional officers or top officials from serving in the Legislature. Only people with supervisory power “exercise any functions” of the executive. So while the director of the Department of Public Safety might be banned, a regular Highway Patrol trooper would not.

The Sandoval view. Gov. Brian Sandoval, when he was serving as attorney general in 2004, wrote a lengthy opinion that concluded all state employees — regardless of position — were banned from serving in the Legislature. His opinion relied on case law from other states, and Nevada’s own precedents. Sandoval specifically rejected the LCB view.

However, the Nevada Supreme Court spurned Sandoval’s logic in a 2004 court case brought by then-Secretary of State Dean Heller, who sought to remove several state workers from their legislative jobs. The court held only the Legislature (not the courts) had the right to decide the “elections, qualifications and returns of its members,” although it allowed for individual lawsuits to argue that specific state lawmakers were holding their dual jobs illegally.

Notably, Sandoval also concluded local government employees (city or county workers, school teachers, police officers, etc.) were not banned from serving in the Legislature, since the prohibition applies only to the state executive branch. That conclusion was never tested in court.

The strict-construction view. Under this theory, all government employees (state and local) are banned from serving in the Legislature. This view gives full effect to the plain language of the clause, which aims to avoid the consolidation of government power, a hedge against tyranny.

If the Supreme Court adopted this view, it would have a significant impact. There are at least 11 lawmakers who work for governments.

Whether any of these three views hold sway in the Gansert case remains to be seen. But her resignation would definitely moot the case, and justices are loath to render rulings in cases without an actual controversy to adjudicate. That’s why it’s so important for Gansert to see the matter through.

So don’t quit, senator! It’s the only way Nevada will get a definitive answer.

Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.