In a disappointing yet entirely unsurprising development, a Carson City judge on Tuesday further gutted the state’s separation of powers clause, intended to mitigate the dangers of consolidated authority.
Never let it be said that the state’s political establishment doesn’t protect its own.
Article 3, Section 1 of the Nevada Constitution holds that the state government shall be divided into three separate departments — the legislative, executive and 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.”
But District Court Judge James Russell this week jumped down the rabbit hole and ruled from the bench that the unambiguous codicil doesn’t mean what it clearly says. “The question is,” said Alice in Wonderland, “whether you can make words mean so many different things.”
The case involved Heidi Gansert, a Reno Republican who serves in the state Senate while also collecting a six-figure annual check from her day job as UNR’s executive director of external relations. The Nevada Policy Research Institute a libertarian think tank in Las Vegas, went to court, claiming that Ms. Gansert was in violation of the law because she was working in two branches of government — the legislative and executive — at the same time.
Ms. Gansert’s legal strategy was to parse the meaning of the word “powers” while simultaneously invoking the “everybody does it” defense.
In regard to the latter, she has a regrettable point. For decades, state lawmakers have ignored Article 3, Section 1 without consequence. Acting as accomplices, members of the Nevada judicial system have averted their gaze, using technicalities and feeble sophistry to avoid the issue. In shielding Ms. Gansert from her indifference to the state constitution, Judge Russell follows in that sorry tradition.
NPRI attorney Joseph Becker said he was “shocked” by the decision. But this is Nevada, after all.
The specifics of the judge’s reasoning won’t be known until an official ruling is put into writing in the coming days. But it appears he accepted without critical eye a dubious and self-serving 2003 Legislative Counsel Bureau opinion that the separation of powers language prevents only top officials or constitutional officers from serving in two branches at once. The LCB has the disappointing habit of telling lawmakers what they want to hear. Besides, no actual language in Article 3 supports the bureau’s interpretation.
Despite the state judiciary’s frustrating indifference to enforcing the state’s separation of powers clause, it remains an important concept worth fighting for. In addition to minimizing potential conflicts, the provision is designed to preserve the integrity of each governmental branch, to ensure checks and balances and to prevent the concentration of power, which the nation’s founders felt hastened tyranny.
Mr. Becker shouldn’t hesitate to appeal. If Nevada’s judges are intent on excising Article 3, Section 1 from the state constitution by judicial fiat, let’s get as many on the record as possible.