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Nevada Policy today formally requested the state supreme court to declare unconstitutional the practice of allowing government employees to serve as state legislators.

While the Nevada Constitution bars state legislators from exercising “any functions” related to any other branch of government, this prohibition has been ignored for over 70 years, leading to a litany of abuses.

In 2003, former Assemblyman and City of Las Vegas employee Wendell Williams made explicit the conflict inherent to legislative dual service when he claimed to have voted for a particular piece of legislation that benefited his government employer in exchange for a pay raise and promotion.

Today, Nevada’s top lawmaker, Senate Majority Leader Nicole Cannizzaro, simultaneously wields the “purely executive” power of prosecution in her other job as Clark County prosecutor — a violation of the separation of powers doctrine so blatant that it appears to be unprecedented in the history of American government.

Allowing prosecutors to serve as legislators has transformed the Legislature into an “oligarchy,” wherein Nevadans’ tax dollars go toward funding the “agenda” of law enforcement, rather than doing what “most people” want, according to former Democrat Assemblyman Ozzie Fumo.

Assembly Bill 395, which would have abolished the death penalty in Nevada, was particularly emblematic of this issue. The bill passed the Assembly along party lines but failed to receive a hearing in a Judiciary Committee chaired by Melanie Scheible, in a Senate led by Nicole Cannizzaro — both Democrats who engage in dual employment as Deputy District Attorneys serving at the will of Clark County District Attorney, Steve Wolfson, who testified in opposition to AB395 and is simultaneously advancing efforts to schedule the execution of Zane Floyd.

“That the judiciary is obligated to enforce the constitutional rules imposed upon government, and that their failure to do so would lead to tyranny, has been understood by the American judiciary since before Nevada even existed,” said Nevada Policy Vice President Robert Fellner.

“Dual service dilutes, if not destroys, the very foundation upon which the concept of Nevada’s representative government rests — that the Legislature enacts the will of the people rather than the will of the government.

“In recognition of this fact, the Nevada Supreme Court previously said that vigorous enforcement of the separation of powers doctrine is necessary for the very attainment of freedom itself,” Fellner added.

“Now we just need to see if the Court still believes Nevadans are a free people who deserve to be protected from such abuses.”

To download a copy of the opening brief filed today before the Nevada Supreme Court, please visit Nevada Policy’s Separation of Powers Case Timeline page.

For more information, please contact Nevada Policy Vice President Robert Fellner at Robert@NevadaPolicy.org.

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Today’s ruling by the Nevada Supreme Court striking down a pair of illegally passed tax hikes is good news for those who believe that government should be accountable to the people, rather than merely ruling over them.

“Today, the state’s highest court reminded lawmakers that the constitution’s words actually have meaning,” said Nevada Policy Vice President & Director of Policy Robert Fellner.

After successive landslide votes in 1994 and 1996, Nevadans amended the state constitution to require a two-thirds majority vote in both houses of the Legislature to pass any bill “which creates, generates, or increases any public revenue in any form.”

The Democrat-controlled Legislature and Governor Steve Sisolak ignored this mandate, however, when in 2019 they passed a pair of bills that prevented the expiration of one tax and the scheduled decline of another.

Those in favor of the tax hike laughably claimed that extending a tax set to expire is not an “increase,” as Nevadans are still paying the same dollar amount in taxes.

“Because the concept of time exists, this argument was utterly absurd on its face,” explained Fellner.

“That same line of reasoning would justify a bank extending your mortgage payment for an additional 100 years, while claiming that doing so was not a cost increase simply because the monthly payment amount remained the same.”

This case highlights how hopeless it is to expect government actors to abide by the constitutional rules on their own accord, argued Fellner.

“Ultimately, the rules we put in place for government only work when citizens and the judiciary are willing to ensure they are enforced. And because a government that can ignore constitutional limits with impunity is necessarily illegitimate, this ruling could hardly be more critical.”

Thankfully, the Nevada Supreme Court upheld the plain text of the constitution and, in so doing, helped to ensure that Nevadans have a government that is truly “of the people, by the people, and for the people.”

Read the full ruling here. And for more information about the history of this case, please click here.

Nevada Policy today asked the state Supreme Court to issue an expediting ruling on its Separation of Powers challenge.

“District Court Judge Jim Crockett clearly erred when he dismissed our claim for lack of standing, a determination he made without analysis or justification,” Nevada Policy Vice President Robert Fellner said.

“The issues before the court are matters of pure law and are fully briefed,” Fellner added. “Given the profound importance of this issue, which goes to the very heart of our system of representative government, it is imperative that the Court exercise its discretion to hear this matter on an expedited basis.”

The appeal centers on whether Nevadans have the right to seek judicial enforcement of the state constitution, as explained here.

“By exercising their discretion to resolve this matter as quickly as possible,” Fellner said, “the Nevada Supreme Court can ensure a resolution is provided before the offending dual-serving legislators resume their Executive Branch employment on June 1, 2021.”

To learn more about how dual-serving legislators corrupt the democratic process and prevent the Legislature from serving the public interest, please click here.

For more information, please visit https://www.npri.org/separation-of-powers/ or contact NPRI Vice President & Director of Policy Robert Fellner at Robert@NevadaPolicy.org.

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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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