Nevada Supreme Court has come down strongly for separation of powers

One of the citations offered by the Nevada Policy Research Institute in its lawsuit seeking to enforce the state Constitution’s Separation of Powers Clause and ban public employees from serving in the Legislature is a 1967 Supreme Court ruling titled Galloway v. Truesdell.

NPRI sued state Sen. Heidi Gansert, who also is employed as a flack for the University of Nevada, Reno, arguing she can’t hold both jobs because the Constitution says a person exercising power in one branch of government may not perform any functions in another branch.

The 1967 case does not involve one person serving in two branches but it does address the constitutionality of whether a person serving in one branch may also exercise powers constitutionally assigned to another.

The court found the law that dictated that judges should determine who may perform marriage ceremonies was unconstitutional under the Separation of Powers Clause. The court concluded: “NRS 122.070 is unconstitutional and void because it violates Article 3, Section 1, and Article 6, Section 6, of the Nevada Constitution by imposing legislative, administrative, ministerial, and investigative functions upon the District Courts and District Judges that are non-judicial in character and are unauthorized.”

The opinion quotes liberally from a series of articles by Arthur Vanderbilt, former chief justice of the Supreme Court of New Jersey:

“Individual freedom and the progress of civilization are attainable, but only if each of the three branches of government conforms to the constitutional principles of the separation of powers. This they will do only if the people so will. The problem in the first instance thus becomes one of popular education in the fundamental principles of free government. Among these principles there is none more significant today than the doctrine of the separation of powers.”

It also quotes Montesquieu:

“Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be the legislator: Were it joined to the executive power the judge might behave with all the violence of an oppressor.”

The court further quotes the Latin maxim “expressio unius est exclusio alterius,” which means the expression of one thing is the exclusion of another, and noted that it had ruled in an earlier case:

“It is true that the constitution does not expressly inhibit the power which the legislature has assumed to exercise, but an express inhibition is not necessary. The affirmation of a distinct policy upon any specific point in a state constitution implies the negation of any power in the legislature to establish a different policy. `Every positive direction contains an implication against anything contrary to it which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the law-making authority as strong as though a negative was expressed in each instance.'”

Separation of powers is a fundamental and recognized law of the land as expressly stated by the Nevada Constitution. To find otherwise is a farce and a canard.