Separate the powers

The United States and all state constitutions uphold the same Republican form of government, based on the doctrine known as the separation of powers. All the states’ constitutions create three branches of government, the Legislative, the Executive and the Judicial. In addition, they each contain a clause that forbids anyone to hold office or work in more than one of those branches at the same time. The separation of powers clause in the Nevada Constitution reads, at article 3, section 1:

“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” (italics added).

In 1994, I ran for the Assembly in Sparks as a minor party (Libertarian) candidate. Democrat Jan Evans, the incumbent, was a powerful politician who had been Assembly speaker pro tem. I got the usual minor party 4 percent of the vote, and Ms. Evans easily won reelection over her Republican opponent.

I decided to challenge the election, not by a vote recount, of course, but on the basis of her eligibility for the office. Ms. Evans held an executive position at the University of Nevada, Reno’s School of Medicine, and a large part of her duties involved fundraising. I filed a “contest of election” under the separation of powers clause.

The Contract with America and a Republican takeover of Congress came about in 1996. In Nevada, the Assembly was split right down the middle between Republicans and Democrats, and my contest kept the powerful Evans from participating in the power brokering.

In addition, first-term Republican Assemblymember Thomas Batten, who had a job with the Nevada Gaming Control Board, resigned to serve in the Assembly, while the Democrats were bent on giving Evans a pass. This did not sit well with many.

At that time someone in Nevada government had approved a flowchart of its organization that showed the education system as a fourth, co-equal branch of government. That was a red flag to many constitutional conservatives. No matter how important some may feel public education is, it is part of the executive branch and therefore subordinate to the constitutional branches.

I lost the hearing, of course, but I put up a good fight. Several years later, I donated my research to the Nevada Policy Research Institute (NPRI). Constitutional conservatives began to take the issue seriously. Because Nevada’s separation of powers clause reads “any functions,” it is very restrictive, covering employees as well as office holders—mayors, for example. Most older Nevada attorney general legal opinions (AGOs), in fact, held this originalist view, but it had been loosened since the days of Robert List, who was attorney general from 1971-1979.

In 2004, Attorney General Brian Sandoval issued an AGO that employees in the state executive branch are ineligible to serve in the Legislature. They must resign—leaves of absence are not sufficient—from one branch or the other.

On Feb. 21, NPRI filed a lawsuit against Heidi Gansert, (R) Senate 15, under the separation of powers clause. Gansert is special assistant for external affiars to UNR President Marc Johnson. This time the plaintiff is Las Vegas resident Doug French, who asserts he wants her job. NPRI is hopeful to get a judicial ruling in place that would be more definitive than an AGO.

NPRI’s Joseph Becker calls enforcement of separation of powers an important check on concentrated government power and corruption. I agree. Now, if only we can get the lawyers out of the Legislature as well!