Subverting the obvious

Gansert and the separation of powers

HEIDI Gansert, a Reno Republican who sits in the Nevada Senate, last month asked a judge to dismiss a complaint arguing that she is in violation of the state’s separation of powers clause. Her legal reasoning, however, amounts to a teetering house of cards hastily constructed with an utter disregard for the plain language of the state constitution.

Article 3, Section 1 of the Nevada’s guiding legal document outlines that the state government shall consist of the legislative, executive and judicial branches “and no persons charged with the exercise of power properly belonging to one of these departments shall exercise any functions appertaining to either of the others.”

In addition to her service as a lawmaker in the legislative branch, Ms. Gansert also moonlights as a special assistant to the president of UNR, an executive branch position. That puts her in conflict with any fair reading of the state constitution. The Nevada Policy Research Institute, a free-market think tank in Las Vegas, has asked a court to rule as much.

But to subvert the obvious, Ms. Gansert argues that a person can be in violation of the separation of powers clause only if “while serving in one branch, he or she has exercised a sovereign function relating to another branch. The only person who can exercise a sovereign function is a public officer” such as a university president or regent.

Her argument goes on to say that the allegation “fails to identify any function exercised by Gansert in her university position which implicates the separation of powers or infringes upon or affects the legislative branch.” The latter point is completely irrelevant, the former is twisted logic. An executive branch employee must, by definition, be exercising functions related to that branch.

In addition, where in Article 3, Section 1 do the words “sovereign function” or “public officer” appear? Don’t bother searching: They don’t. These terms represent artificial constructs designed to obfuscate and deflect attention from the matter at hand.

The separation of powers doctrine serves as an important bulwark against tyranny by preventing the concentration of authority in the hands of the few. It promotes a system of checks and balances by mandating that the three branches operate independently. The concept also helps minimize potential conflicts of interest.

For almost 50 years, Nevada lawmakers have treated Article 3, Section 1 as a quaint relic that they may ignore with impunity and the courts have used technicalities to avoid the issue. Even a 2004 opinion from then-Attorney General Brian Sandoval — concluding that executive branch workers may not serve in the Assembly or state Senate — failed to force a resolution.

The court should hold that Ms. Gansert’s arguments have no merit and allow the suit against her to move forward. It’s long past time that the judiciary, rather than cynically protecting the state’s comfortable political elites, reinforce that the Nevada constitution means what it clearly says.