1 I.

INTRODUCTION
2 French brings this bare bones complaint against Gansert without any allegations
3 justifying his position that Gansert should not be allowed to work as a public employee
4 while serving her state in the citizen-based Legislature. The Complaint contains
5 numerous legal and conclusory allegations, but the only material factual allegation
6 against Gansert is that she is currently employed by the University while serving as a
7 state senator. This lone allegation is not sufficient as a matter of law to state a
8 constitutional violation.
9 French seemingly filed this action in order to prevent Gansert from serving in the
1O Nevada Legislature while employed by the University of Nevada, Reno. However, as a
11 matter of law, Gansert does not exercise any powers of the executive branch by virtue
12 of her employment as a special assistant to the President of the University and
13 therefore, there is no violation of the separation of powers clause.
14 A person can only be in violation of the separation of powers clause if, while
15 serving in one branch, he or she has exercised a sovereign function relating to another
16 branch. The only person who can exercise a sovereign function is a public officer. By
17 case law and statutory definition, the only persons in the Nevada System of Higher
18 Education that are public officers is a member of the Board of Regents or the president
19 of a university or community college. Gansert is neither a regent nor a president, she
20 ..cannot exercise any sovereign functions and therefore, as a matter of law, her
21 employment does not violate the separation of powers provision of the Nevada
22 Constitution. As such, this Court must dismiss French's claims against Gansert
23 pursuant to NRCP 12(b)(5).
24 Ill
25 Ill
26 Ill
27 Ill
28 Ill

Page 2of19
 (.
\

1 II. FACTS 1
2 Gansert is a resident of Reno, Nevada and currently holds the position of
3 Executive Director, External Relations for the University ("Executive Director").
4 Complaint, 1J 5. Gansert serves as a "Special Assistant to the University President,
5 External Affairs" and she serves under the president. See, Organization Flow Chart,
6 attached hereto as Exhibit 1 and incorporated herein by reference. 2 On or about
7 February 6, 2017, Gansert, was sworn in as a state Senator in the Nevada State
8 Legislature ("Legislature"). Complaint, 1J1J 1, 5, 8.
9 Defendant University of Nevada, Reno ("University") is named as a defendant in
1O its capacity as the employer of Gansert. Complaint, 1J 6. The Board of Regents
11 ("NSHE") is not named at all in the Complaint other than in .the caption. 3
12 French is a resident of Las Vegas, Nevada. Complaint, 1f 4. French claims that
13 he is earnestly seeking the position of Executive Director, currently held by Gansert. Id.
14 French seeks a declaration that Gansert's act of working at the University while
15 serving in the Legislature violates the Nevada Constitution, Article 3, 1(1) regarding
16 separation of powers. F!ench also seeks injunctive relief to enjoin Gansert from
17 continuing in her employment position as Executive Director and seeks to enjoin
18 Gansert from retaining any monetary or employment benefits derived from the position.
19 Complaint, p. 4.
20
21 1
Many of the allegations in French's Complaint are not factual allegations, but instead are
22 conclusory allegations and legal conclusions which are presented as factual allegations. As will
be demonstrated below, these allegations do not need to be accepted as true in analyzing the
23 Motion to Dismiss and therefore, they are not referenced in the Facts Section of the Motion to
Dismiss.
24 2
The Court may take judicial notice of facts generally known or capable of verification from a
reliable source, whether it is requested to or not. NRS 47.150(1). Further, the Court may take
25 judicial notice of facts that are "[c]apable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned, so that the fact is not subject to
26
reasonable dispute." See NRS 47.130(2)(b). The Court can take judicial notice of the
27 organizational chart because it is a public record available on the University's website, capable
of verification from a reliable source and the fact is not subject to reasonable dispute.
3
28 The University and NSHE are collectively referred to as the "NSHE Defendants."

Page 3of19
 1 Ill. LEGAL STANDARD
2 Nevada Rule of Civil Procedure 12(b)(5) requires the Cqurt to dismiss a
3 complaint that fails to state a claim upon which relief can be granted. Dismissal is
4 appropriate where Plaintiff "could prove no set of facts, which, if true, would entitle
5 [him] to relief." Buzz Stew, LLC v. City of North Las Vegas, 124 Nev. 224, 226-227,
6 181P.3d670, 672 (2008); Edgarv. Wagner, 101Nev.226, 227, 699P.2d110, 111
7 (1985) (court must dismiss complaint which fails to "set forth allegations sufficient to
8 make out the elements of a right to relief.").
9 When considering a Rule 12(b)(5) motion to dismiss, the Court will construe the
1O pleading liberally and consider well-pied factual allegations as though they were
11 true. Buzz Stew, 124 Nev. at 226-227, 181 P.3d at 672. However, the tenet that a
12 court must accept as true all of the allegations contained in a complaint is inapplicable
13 to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed.
14 2d 868 (2009). The Court is not bound to accept as true a legal conclusion couched as
15 a factual allegation. Ashcroft, 556 U.S. at 678, citing Be// Atlantlic Corp. v. Twombly,
16 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Threadpare recitals of
17 the elements of a cause of action, supported by mere conclusory statements, do not
18 suffice. Twombly, 550 U.S. at 555; see also, Ashcroft, 565 U.S. at 678. The Court is
19 not required to "assume the truth of legal conclusions merely because they are cast in
20 the form of factual allegations." See W Min. Council v. Watt, 643 F.2d 618, 624 (9th
21 Cir. 1981) (interpreting the substantively identical fed. R. Civ. P.12(b)(6)); see also
22 Sproul Homes of Nev. v. State, 96 Nev. 441, 445, 611P.2d620, 622 (1980) (plaintiff
23 cannot survive a motion to dismiss when its "complaint is replete with generalizations
24 and conclusory matter.").
25 Ill
26
27
28

Page 4of19
 1 IV. LEGAL ANALYSIS
2 A. French Failed to Allege Sufficient Factual Allegations to State A Claim for
Relief Against Gansert.
3
French's Complaint is replete with conclusory allegations that cannot be used to
4
make out a claim for relief and the remaining factual allegations do not state a violation
5
of the Nevada Constitution. Therefore, French's Complaint must be dismissed.
6
French's Complaint recites the text of the Article 3, 1(1) of the Nevada
7
Constitution. Complaint, ~ 9. Specifically, Paragraph 9 of the Complaint states in
8
relevant part:
9
"The powers of the Government of the State of Nevada shall be divided
10 into three separate departments, the Legislative, the Executive and the
11 Judicial; and no persons charged with the exercise of powers properly
belonging to one of these departments shall exercise any functions,
12 appertaining to either of the others ... "
13 French then provides alleged background regarding the rationale and intent
14 behind the separation of powers clause before going on to allege in conclusory fashion
15 that "Defendant GANSERT's employment in Nevada State Executive Branch position
16 expressly violates the Nevada Constitution and undermines liberty by diluting the
17 separation ~f powers, concentrating power, creating conflicts of interests and
18 appearances thereof." Complaint,~~ 10, 13.
19 Similarly, in the First Claim for Relief, French again states that Gansert holds the
20 Nevada executive branch position of Executive Director for the University while
21 concurrently sitting as a Senator in the Legislature, thus directly violating Article 3, 1 (1)
22 of the Nevada Constitution. Complaint, ~ 13. French also alleges that this
23 "constitutional violation by Defendant harms Plaintiff FRENCH's legally protectable
24 interests as he is earnestly seeking the executive branch position currently held by
25 Defendant GANSERT." Complaint,~ 13.
26 These allegations in paragraphs 9, 10, 11 and 13 of the Complaint are not factual
27 allegations, but legal or conclusory allegations and therefore, cannot be accepted as
28 true on a motion to dismiss. See, Edgar, 101 Nev. at 227-228, 699 P .2d at 111. The

Page 5of19
 1 Court is not bound to accept as true, a legal conclusion merely because it is couched as
2 a factual allegation. Ashcroft, 556 U.S. at 678, citing Twombly, 550 U.S. at 555; see
3 also, W. Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (interpreting the
4 substantively identical Fed. R. Civ. P. 12(b)(6)).
5 Without reliance on these conclusory and legal allegations, French's Complaint
6 merely pleads that Gansert's employment with the University is a direct violation of
7 Article 3, 1(1) of the Nevada Constitution. However, the plain language of Article 3,
8 1(1) cited above, does not say that being an employee of the University or even the
9 Executive branch is a bar to legislative service. Therefore, neither the facts as stated
1O nor the law as cited in French's Complaint state a violation of the Nevada Constitution.
11 In short, based upon the face of the Complaint and accepting only the factual
12 allegations as true, French cannot state a claim for a constitutional violation.
13 8. French Cannot State a Claim Violation of the Nevada Constitution.

14 The separation of powers clause of the Nevada Constitution specifically states

15 that no persons charged with the exercise of powers properly belonging to the
16 Legislative, Executive or Judicial branch shall exercise any functions, appertaining to
17 either of the others. Article 3, (1)(1) (emphasis added). Based upon the language of
18 Article 3, it is not enough for the person merely to be part of one of the three branches
19 for a violation of the clause. Id. The person belonging to one branch of government
20 also must have exercised a function related to one of the other branches. Id.
21 In his Complaint, French alleges only that Gansert is the Executive Director for
22 the University. French fails to allege what Gansert's powers or functions are as
23 Executive Director. French also fails to identify any function exercised by Gansert in
24 her University position which implicates the separation of powers or infringes upon or
25 affects the Legislative branch. Because French fails to allege Gansert had any
26 functions and fails to allege Gansert exercised any functions, French's constitutional
27 claim is deficient and must be dismissed.
28

Page 6of19
 1 c. French Cannot State a Claim for Violation of the Nevada Constitution
Based Upon Gansert's Position as a Public Employee.
2
3 French also fails to allege that Gansert is a public officer and this failure is fatal to

4 his Complaint for a violation of the separation of power clause. The legal distinction

5 between a public officer and a public employee is critical because the separation of

6 powers clause does not prohibit public employees within the Executive branch from

7 being legislators. The separation of powers clause requires the exercise of sovereign

8 functions and public employees do not exercise any sovereign functions relating to the

9 Executive branch. There is well established case law to support this tenet that public

10 employees do not exercise sovereign functions. See, State ex rel. Kendall v. Cole, 38

11 Nev. 215, 229 (1915); State ex rel. Mathews v. Murray, 70 Nev. 116, 120-21 (1953)

12 (a public office is distinguishable from other forms of employment in that its holder

13 has by the sovereign been invested with some portion of the sovereign functions of

14 government); Eads v. City of Boulder City, 94 Nev. 735, 737 (1978). Public officers

15 are the only persons who exercise the sovereign functions of state government and

16 therefore, only public officers can be in violation of Article 3 and the separation of powers

17 clause. See, Article 3 1(1) and Mathews, 70 Nev. at 120-121; Eads, 94 Nev. at 737.

18 For purposes of French's Complaint, the issue is whether Gansert's position is

19 one of a public officer or one of public employment. If the position of Executive Director
20 is a public officer position, then there might be a separation of powers issue, but only if

21 Gansert exercised any functions as Executive Director in relation to the Legislative

22 branch. However, if the position of Executive Director is a position of public

23 employment, then there is no separation of powers issue.

24 The definition of public officer can be found in both case and statutory law. The

25 case law establishes two guiding principles in defining a public officer. First, a public
26 officer must serve in a position created by law. Univ. & Cmty. Coll. Sys. v. DR
27 Partners, 117 Nev. 195, 200, 18 P.3d 1042, 1046 (2001), citing Mathews, 70 Nev. at
28 120-121. Second, the duties of a public officer must be fixed by law and must
involve an exercise of the sovereign functions of the state. DR Partners, 117 Nev. at
Page 7of19
 I
1 200, citing Kendall, 38 Nev. at 224. Both of these principles must be satisfied before a
2 person is deemed a public officer. See, Mullen v. Clark Cnty., 89 Nev. 308, 310-311
3 (1973).
4 NRS 281.005(1) states that a public officer is a person elected or appointed to a
5 position which: (a) Is established by the Constitution or a statute of this State, or by a
6 charter or ordinance of a political subdivision of this State; and (b) involves the
7 continuous exercise, as part of the regular and permanent administration of the
8 government, of a public power, trust or duty. NRS 281.005(1). The case law and
9 statute can be read in harmony because NRS 281.005(1)(a) encompasses the
10 fundamental principle that a public officer is created by law, and NRS 281.005(1)(b)
11 encompasses the fundamental principle that a public officer's duties are fixed by law
12 and involve an exercise of the state's sovereign power. DR Partners, 117 Nev. at 201,
13 18 P.3d at 1047.
14 French does not allege that Gansert's position is established by the Nevada
15 Constitution or by statute. This is because French cannot make this allegation. In DR
...
16 Partners, the Supreme Court determined that only the Board of Regents held positions
17 established by the Constitution or a statute of a state. See, DR Partners, 117 Nev. at
18 205, 18 P.3d at 1048 ("the sovereign functions of higher education repose in the Board
19 of Regents, which has been constitutionally entrusted to control and manage the
20 University"). After the DR Partners case was decided, the legislature enacted NRS
21 281A.182 which also provides that a president of a university, state college or
22 community college within the NSHE system is also considered a public officer for
23 purpose of Chapter 281A, the Nevada Ethics in Government Law chapter. NRS
24 281A.182. NRS 281A.182 does not create any further classifications of public officers
25 in the NSHE system and there is nothing in NRS 281A.182 which designates the
26 Executive Director as a public officer.
27 French does not allege Gansert is a member of tl)e Board of Regents and he has
28 not alleged that Gansert is the president of the University. Again, this is because he

Page 8of19
 1 cannot make these allegations. The Court can take judicial notice of the current elected
2 members of the Board of Regents as posted on NSHE's website, and see that Gansert
3 is not one of the current Board members. See, NRS 47.130 and NRS 47.150; FTC v.
4 AMG Servs., 2014 U.S. Dist. LEXIS 10490, *45-46, n. 5 (Nev. 2014) (the court may take
5 judicial notice of information posted on government websites as it can be "accurately
6 and readily determined from sources whose accuracy cannot reasonably be
7 questioned"); Daniels-Hall v. Nat'/ Educ. Ass'n, 629 F/3d 992, 998-999 (9th Cir. 2010)
8 ("It is appropriate to take judicial notice of this information, as it was made publicly
9 available by government entities"). Additionally, the University's organizational
1O leadership chart, attached as Exhibit 1, demonstrates that Gansert was not the
11 University president at the time she was sworn in as State Senator. Exhibit 1,
12 Organizational Flow Chart. Hence, French cannot meet the first tenet of establishing
13 Gansert's position is one of a public officer because he cannot prove Gansert is a
14 member of the Board of Regents or the University president. 4
15 The Mathews case further illustrates why Gansert's position is not one of a public
16 officer. In Mathews, the government employee was the director of the Driver's License
17 Division. The Nevada Supreme Court determined that Mathews was not a public officer
18 because his position was created by administrative authority and not by statute, and
19 the position was wholly subordinate and responsible to the administrator of the
20 department. Mathews, 70 Nev. at 122-123, 258 P.2d at 983. The Nevada Supreme
21 Court reasoned that if the position was wholly subordinate and responsible to the
22 administrator, the position was not created by law, the duties attached to the position
23 had not been prescribed by law and the person holding the position was not
24 independent in exercising his or her duties. Mathews, 70 Nev. at 123, 258 P.2d at 983.
25 As such, the position had not been invested with any portion of the sovereign functions
26 of the government. Id.
27
28 4
The Nevada Supreme Court also has held that NSHE is not a political subdivision for purposes
of NRS 281.005(1). See, DR Partners, 117 Nev. at 205, 18 P.3d at 1048.
Page 9of19
 r-''
\
'
r.
!

1 Gansert is similarly situated to the director in the Mathews case. Gansert's

2 position is not created by law and her position is subordinate and responsible to the
3 president of the University, who is the administrator of her department. See, Exhibit 1,
4 University Organization Chart. Similarly, since the position of Executive Director is not
5 fixed by law, the duties as well as the position can be modified or even eliminated at an
6 time. The Executive Director is not independent in exercising her duties and she
7 reports to the University president. See, Exhibit 1, Organization Flow Chart. These
8 qualities, like the director in the Mathews case, demonstrate that the Executive Director
9 position is one of a public employee, not a public officer.
1O French also cannot establish that Gansert's position is one of a public officer
11 under the second tenet, which states that duties of a public officer must be fixed by
12 law and must involve an exercise of the sovereign functions of the state. DR
13 Partners, 117 Nev. at201, 18 P.3d at 1047. French did notallegethatGansert's
14 duties were fixed by law and that they involved the exercise of the sovereign functions
15 of the state. Even if French had made these allegations, they would not save his claim
16 as case law and statutory law make it clear that Gansert's position exercises no
17 sovereign functions. Sovereign functions can only be exercised by public officers, not
18 public employees. See, Kendall, 38 Nev. at 229; Mathews, 70 Nev. at 120-121;
19 Eads, 94 Nev. at 737. Only the Board of Regents and university presidents are public
20 officers for the NSHE System. DR Partners, 117 Nev. at 201, 18 P.3d at 1047; NRS
21 -281A.182. Additionally, Gansert is wholly subordinate and responsible to the
22 University President and can only implement policies established by the Board and the
23 President, which further demonstrates that she does not exercise the sovereign
24 functions of the state. See, DR Partners, 117 Nev. at 205, 18 P.3d at 1049.
25 In summary, French failed to allege any facts that would establish that Gansert
26 exercised any functions in her University position which infringed upon or affected
27 another branch of the government sufficient to give rise to separation of powers issues.
28 The law is clear that only public officers can exercise sovereign functions and thereby

Page 10of19
 (

1 implicate the separation of powers clause. French failed to allege any facts
2 demonstrating Gansert's position is one of a public officer. French did not alleged that
3 Gansert's position was established by the Constitution or a statute. In fact, only the
4 Board of Regents and the presidents' positions are established by law and Gansert is
5 not a member of the Board of Regents and is not the president. Additionally, French
6 failed to allege that Gansert's position exercises sovereign functions and in fact, the
7 position cannot. As such, Gansert holding the position of Executive Director does not
8 violate the separation of powers clause of the Nevada Constitution. Therefore, French's
9 claims regarding violations of the Nevada Constitution do not state claim for against
10 Gansert.
11 D. French Failed to State a Claim for Declaratory Relief Against Gansert.

12 French also has failed to state a specific claim for declaratory relief against
13 Gansert. To state a claim for declaratory relief, the following four elements must be
14 met: 1) there must exist a justiciable controversy; that is to say, a controversy in which
15 a claim of right is asserted against one who has an interest in contesting it; (2) the
16 controversy must be between persons whose interests are adverse; (3) the party
17 seeking declaratory relief must have a legal interest in the controversy, that is to say, a
18 legally protectable interest; and (4) the issue involved in the controversy must be ripe
19 for judicial determination. Doe v. Bryan, 102 Nev. 523, 525, 728 P.2d 443, 444
20 (1986), citing Kress v. Corey, 65 Nev. 1, 25-26, 189 P.2d 352, 364 (1948). Failure to
21 set forth allegations sufficient to make out the elements of a right to relief is grounds for
22 dismissal of the complaint. Edgar, 101 Nev. at 227, 699 P.2d at 111; see also,
23 Ashcroft, 556 U.S. at 678 (pleading that offers only "labels and conclusions" or "a
24 formulaic recitation of the elements of a cause of action" will not suffice).
25 1. Justiciable Controversy.
26 Nevada has a long history of requiring an actual justiciable controversy as a
27 predicate to judicial relief. Bryan, 102 Nev. at 525, 728 P.2d at 444. A justiciable
28 controversy is a controversy in which a claim of right is asserted against one who has

Page 11of19
 f.
\

1 an interest in contesting it. Id. Additionally, "litigated matters must present an existing
2 controversy, not merely the prospect of a future problem." Bryan, 102 Nev. at 525,
3 728 P.2d at 444.
4 As demonstrated above, there is no existing controversy. Gansert is a public
5 employee who does not exercise any sovereign functions. Therefore, there is no
6 present or existing controversy regarding her University employment, her service in the
7 state Legislature and any alleged violation of Article 3, ~ 1(1). Furthermore, French is
8 not bringing an action about an existing controversy because he has not sought the job
9 for which he is claiming an injury. It is a future problem French is protesting about, and
1O it is a speculative one at that since he failed to allege the qualifications or requirements
11 of the position and therefore, cannot allege that he is qualified for the position.
12 Moreover, it is unclear if French as an individual even has standing to bring a
13 constitutional violation action against another individual based upon the other
14 individual's employment. Much like the federal Constitution, the Nevada Constitution
15 places restraints upon the conduct of the State, and it generally does not create a
16 private right of action against other private individuals. In his only claim for relief,
17 French failed to allege that there was any state action giving rise to a constitutional
18 violation and he is not asking for redress of any alleged state action. Instead, French's
19 Complaint is against Gansert in her private individual capacity. French has failed to
20 demonstrate that Article 3, 1(1) provides a private cause of action against another
21 private individual. As such, there is no adverse interests between French and Gansert.
22 2. Adverse Interests.
23 As stated above, a justiciable controversy requires a ripe dispute between two
24 interested and adverse parties. UMC Physicians' Bargaining Unit of Nevada Serv.
25 Emples. Union, SEIU Local 1107 v. Nev. Serv. Emples. Union/SEIU Local 1107, 124
26 Nev. 84, 93-94, 178 P.3d 709, 715-716 (2008).
27 The interests of French and Gansert are not adverse. As demonstrated above,
28 Gansert is allowed to work as a public employee and serve in the state legislature at

Page 12of19
 1 the same time. As such, her employment at the University is not in violation of the
2 Nevada Constitution and therefore, her employment and public service are not adverse
3 to French's claimed interest in seeking Gansert's current position with the University.
4 Additionally, as will be demonstrated below, French does not have an interest in
5 challenging Gansert's conduct because he has not suffered any injury and no legally
6 protectable interest in his speculative claim about his inability to obtain the position of
7 Executive Director.
8 3. Legally Protectable Interest.
9 The element of a legally protectable interest is connected to the requirement of
1O standing to bring a lawsuit. To have standing to bring a lawsuit, the plaintiff must have
11 suffere~ an. "injury in fact." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 119 L. Ed.
12 2d 351, 112 S. Ct. 2130 (1992). Id. An injury in fact is an invasion of a legally
13 protectable interest. Genta. Delta Water Agency v. United States, 306 F.3d 938, 946-
14 947 (9th Cir. 2002).
15 To establish standing, a plaintiff must ''personally suffer injury that can be fairly
16 traced to the allegedly unconstitutional [conduct] and which would be
17 redressed ... "through judicial action. Elley v. Stephens, 104 Nev. 413, 416, 760
18 P.2d 768, 770 (1988), citing Valley Forge Christian Coll. v. Ams. United for
19 Separation of Church and State, 454 U.S. 464, 472 (1982). The requirement of an
20 actual, personal, redressable injury 'tends to assure that the legal questions presented
21 to the court will be resolved, not in the rarified atmosphere of a debating society, but
22 in a concrete factual context conducive to a realistic appreciation of the consequences
23 of judicial action." Valley Forge, 454 U.S. at 472.
24 French does not have a legally protectable interest because he has failed to
25 identify an actual, personal injury capable of being resolved by the alleged
26 unconstitutional conduct. French does not specifically allege in his Complaint he
27 suffered an actual, personal injury. See, Complaint, pp. 1-4. Presumably,
28 French's alleged injury is his inability to obtain the position of Executive Director.

Page 13of19
 r
1 This alleged injury is not a tangible or actual injury. It relies on too much
2 conjecture and speculation to be considered an actual or legally protectable
3 interest. For example, there are no allegations in French's Complaint describing
4 Gansert's Executive Director position, the duties of that position, what the
5 qualifications for the position were, or that French possessed these specific
6 qualifications. Additionally, French lives in Las Vegas, not Reno where the
7 University is located. Complaint, 1{ 4. There is nothing in the Complaint other than
8 French's conclusory allegation that he was qualified and this conclusory allegation
9 does not need to be taken at face value. Edgar, 101 Nev. at 227, 699 P.2d at 111.
1O Furthermore, the alleged legally protectable interest is purely speculative
11 because French cannot establish that, were it not for Gansert's employment in the
12 position of Executive Director, he would be employed in that position. French
13 assumes he is the best and most qualified person who would be applying for the
14 job. French also assumes that the position would be refilled by the University if
15 Gansert stepped down from her position. These numerous assumptions
16 demonstrate that the claimed injury is simply too speculative or remote to rise to
17 the level of an actual or personal injury.
18 Finally, French cannot demonstrate that the alleged injury can be redressed
19 by court intervention. French's injury is his inability to hold the position currently
20 held by Gansert. However, this Court cannot order the University to hire French.
21 This is especially true given the minimal conclusory allegations about his alleged
22 qualifications for the position and the possibility of an open hiring process for the
23 position if it were to be refilled. Moreover, French did not ask for such relief in his
24 Complaint prayer. The alleged injury simply does not give French standing to
25 bring his Complaint.
26 French also lacks standing for his second prayer for relief seeking return or
27 repayment of any monetary or employment benefits derived by Gansert fr.om her
28 employment at the Unive~sity. Relief is not available to a plaintiff where the relief

Page 14of19
 (

1 requested would unwind the state's previous expenditures. See, Dewhurst v. Hendee,
2 253 S.W.3d 320, 332 (Tex. App. 2008) (stating that "it is well-established that
3 taxpayers have standing only to challenge prospective state expenditures, but do not
4 have standing to complain of public funds that have already been spent").
5 4. Ripeness.
6 A case is ripe for review when "the degree to which the harm alleged by the
7 party seeking review is sufficiently concrete, rather than remote or hypothetical, [and]
8 yield[s] a justiciable controversy." Herbst Gaming, Inc. v. Secy of State, 122 Nev. 877,
9 887-888, 122 Nev. 877, 141 P.3d 1224, 1230-31 (2006). If harm is likely to occur in
1O the future because of a deprivation of a constitutional right, then a ripe case or
11 controversy may exist. But the party must show that it is probable that future harm will
12 occur. Resnick v. Nevada Gaming Com'n, 104 Nev. 60, 66, 752 P.2d 29, 33 (1988).
13 In this action, French has not shown that it is probable that he will be hired for
14 the position of Executive Director should Gansert resign. French assumes he is the
15 best and most qualified person who would be applying for the job, but that is pure
16 speculation on his part: Moreover, French has not shown that the University will hire
17 a replacement for Gansert should she resign. French cannot demonstrate this
18 because the whole instance of Gansert resigning , the University filling the position and
19 the position being filled by French is speculative, remote and a hypothetical.
20 Additionally, Gansert is not prohibited by law from serving in the Legislature while
21 being employed with the University in her position of public employment. As such the
22 harm alleged is not sufficiently concrete or rising to the level of a justiciable
23 controversy. In short, French has not alleged sufficient facts to demonstrate that there
24 is a justiciable controversy or that the matter is ripe for review.
25 E. French Failed to State a Claim for Injunctive Relief Against Gansert.
26 A court cannot provide a remedy unless it has found a wrong. State Farm Mut.
27 Auto. Ins. Co. v. Jafbros, Inc., 109 Nev. 926, 928, 860 P.2d 176, 178 (1993). "The

28 existence of a right violated is a prerequisite to the granting of an injunction." State

Page 15of19
 (

1 Farm, 109 Nev. at 928. Accordingly, an injunction will not issue "to restrain an act
2 which does not give rise to a cause of action ...." State Farm, 109 Nev. at 928. As
3 demonstrated above, French has not met all the elements to state a claim for
4 declaratory relief. There is no controversy or adverse interest between French and
5 Gansert, French does not have a legally protectable interest and the matter is not ripe
6 for review. As such, French's claim for injunctive relief must fail.
7 Furthermore, injunctive relief is inappropriate when there is no justiciable
8 controversy with the named defendant. See Lamb v. Doe, 92 Nev. 550, 551, 554 P.2d
9 732, 733 (1976). French seeks an injunction against Gansert to prohibit herfrom
1O continuing her employment with the University and to prohibit her from retaining any
11 monetary or employment benefits derived from her position from the time she began
12 serving in the Legislature. As demonstrated above, there is no basis for this claim and
13 hence, there is no controversy since Gansert is not violating the Nevada Constitution as
14 a public employee serving in the Legislature.
15 Since French has failed to state a claim for relief against Gansert for declaratory
16 relief and since there is no justiciable controversy between French and Gansert,
17 French's claim for injunctive relief must fail.
18 F. Alternatively, the Claims Against Gansert Must Be Dismissed on the
Grounds Stated in the University and NSHE's Motion to Dismiss.
19
The NSHE Defendants also are filing a Motion to Dismiss French's Complaint.
20
Gansert is incorporating by reference, as though fully set forth herein, the Motion to
21
Dismiss filed by the NSHE Defendants.
22
IV. Conclusion
23
24 Based upon the foregoing, Gansert respectfully requests the Court dismiss

25 French's Complaint for failure to state any claim against Gansert upon which relief can

26 be granted.

27
28

Page 16of19
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1
*****
2 AFFIRMATION

3 Pursuant to NRS 2398.030

4 The undersigned does hereby affirm that the preceding document DOES NOT
5 contain the Social Security Number of any person.

6 Respectfully submitted, this 18th day of April, 2017.

7
8 &kc?:~
MELISSA P. BARNA
9 Assistant General Counsel
University of Nevada, Reno
10 Nevada Bar No. 4916
1664 N. Virginia St. MS 0550
11 Reno, NV 89557-0550
(775) 784-3492
12 (775) 327-2202-FAX
Attorney for Defendant
13
14
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17
18
19
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(

1 CERTIFICATE OF SERVICE
2 Pursuant to NRCP 5(b), I certify that I am an employee of the University of
3 Nevada, Reno, of the Nevada System of Higher Education, over the age of eighteen
4 years and not a party to the within action. I further certify that on this 18th day of April,

5 2017, I filed the foregoing DEFENDANT HEIDI GANSERT'S MOTION TO DISMISS

6 COMPLAINT with the Clerk of the Court and I deposited for mailing, postage prepaid,
7 a true and correct copy of the foregoing addressed as follows:

8 Joseph F. Becker, Esq.

NPRI CENTER FOR JUSTICE
9 AND CONSTITUTIONAL LITIGATION
75 Caliente Street
10 Reno, NV 89509-2807
11
Employee of the University of
12 Nevada, Reno of the Nevada System
of Higher Education
13
14
15
16
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18
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Page 18of19
 ( . (
l (

1 EXHIBIT INDEX

2 No.of
Description Pages
3
1 UnivElrsity of Nevada, Reno: Organizational Chart of 1
4
Leadership
5
6
7
8
9
10
11
12
13
14
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17
18
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Page 19of19
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~ .

EXHIBIT 1

EXHIBIT 1
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President's Offlee at presldent@unr.edu or call 775-7844805

University of Nevada, Reno Page 1