A criminal conviction obtained by prosecutor and Nevada state senator Melanie Scheible was overturned Monday by Clark County District Court Judge Richard Scotti, citing a violation of the defendant’s constitutional due process rights resulting from Scheible simultaneously serving as both a legislator and deputy district attorney.
Specifically, the court ruled that Scheible acted unconstitutionally by serving as a prosecutor while simultaneously serving as a state legislator — an action which is a direct violation of Nevada’s Separation of Powers doctrine. Consequently, Scheible “did not have the legal authority to prosecute” the defendant, according to the judge, rendering the trial “a nullity.”
As the court explained, the Separation of Powers holds that “an individual may not serve simultaneously as the law-maker and the law-enforcer of the laws of the State of Nevada.”
The court further explained that the prohibition on dual-serving legislators contained within the Nevada Constitution “exists to safeguard the people against the tyranny that arises” when the same person charged with the power of writing the law is also responsible for enforcing the law.
It is on these grounds that Nevada Policy recently filed a lawsuit against every sitting state legislator who is simultaneously serving as a state or local government employee in violation of the Nevada Constitution.
While Scheible is currently evading service, and thus has yet to file a formal response to the Nevada Policy lawsuit, other defendants have already done so using the same arguments rejected by Judge Scotti.
In the case before Judge Scotti, Scheible argued that the constitutional prohibition on legislators from performing “any function” related to any other branch of government should be construed as a prohibition only on “sovereign functions,” which is described as duties exercised by public officials rather than all public employees.
State Senator and prosecutor Nicole Cannizzaro is seeking to have Nevada Policy’s lawsuit dismissed on the exact same grounds, while also advancing another line of argument rejected by Judge Scotti — that local government employees exercise some fourth, unnamed form of governmental power not listed or authorized by the state constitution and, as such, are not constrained by Nevada’s Separation of Powers doctrine.
Judge Scotti, however, responded to this line of reasoning by observing that Senator Scheible “invents out of thin air the notion” that the Separation of Powers doctrine does not apply to public employees.
In this way, Judge Scotti’s ruling echoes many of the arguments put forth by Nevada Policy’s recently filed brief — specifically, that the phrase “any function” in the state’s Separation of Powers clause should be interpreted to mean any function, and that local government employees are in fact bound by the Nevada Constitution.
“The reversal of a criminal conviction is a serious matter, but so is the faithful enforcement of the checks and balances contained in the Nevada Constitution,” said Nevada Policy Vice President Robert Fellner.
“As the decision by Judge Scotti demonstrates, the judiciary has an obligation to defend the rights of Nevadans against government overreach and unconstitutional conduct. We are hopeful the Nevada Supreme Court will do just that when our own case inevitably reaches them.”
To learn more about Nevada Policy’s ongoing Separation of Powers lawsuit, please visit https://www.npri.org/separation-of-powers/.
For more information, please contact Robert Fellner at Robert@NevadaPolicy.org.
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