Las Vegas Review-Journal September 18, 2021 – 9:01 pm
The Legislative Counsel Bureau was created more than 75 years ago to provide legal advice and other services to Nevada lawmakers. It has evolved into a de facto advocacy group for the Democratic leadership — and the judiciary is starting to take notice.
This month, the Nevada Supreme Court heard arguments in an appeal of a District Court ruling that tossed a pair of DUI convictions because the prosecutor involved, Melanie Scheible, moonlights as a state lawmaker. The issue may seem esoteric, but it is anything but. The state constitution states explicitly that “no persons charged with the exercise of powers properly belonging” to either the legislative, judicial or executive branch of government “shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”
Ms. Scheible serves in the executive branch as a deputy district attorney for Clark County while simultaneously working as a Democratic state senator in the legislative branch representing an area in southwest Las Vegas. Ms. Scheible may legally hold either position, of course, but by exercising the functions of both branches she is, by any rational reading of the law, violating the constitution.
Her dual service raises serious problems that go beyond potential conflicts of interest. The Founders understood that the consolidation of government authority in too few hands paves the road to autocracy, and they wisely sought to spread state power broadly throughout the three branches of government. “The accumulation of all powers, legislative, executive and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self–appointed, or elective, may justly be pronounced the very definition of tyranny,” James Madison wrote in Federalist No. 51.
Yet for decades, Nevada lawmakers of both major parties have ignored the state constitution’s separation of powers clause while the courts have looked the other way or hidden behind legal technicalities to avoid confronting the obvious. The high court, however, had little choice but to take up the matter after Judge Richard Scotti granted a defense motion last year to throw out DUI charges against two Las Vegas defendants because of Ms. Scheible’s role as both lawmaker and law enforcer.
Enter the attorneys for the Legislative Counsel Bureau, who — if they had any respect for the taxpayers and the law — would have informed Ms. Scheible that she was in an untenable legal position. Instead, Kevin Powers, the LCB’s chief litigator, told the justices during oral arguments that the separation of powers clause doesn’t mean what it clearly says. “A deputy district attorney never exercises a function of any branch of government when involved in the prosecution,” he said, “because they are not the district attorney; they assist the district attorney.”
To put all this in perspective, it’s worth remembering that these same LCB attorneys advised the Democratic legislative leaders in 2019 that they would be on firm legal footing if they extended two “temporary” tax hikes by a simple majority vote even though the state constitution demands that any tax increase or revenue-generating bill be approved by a two-thirds vote in both houses. The state Supreme Court, citing the plain language of the law, rejected such feeble reasoning in a unanimous ruling.
Now the LCB follows up that embarrassment with Mr. Powers’ preposterous argument that a prosecutor seeking to potentially take away an individual’s liberty is not actually exercising a “function” of government — a legal analysis that wouldn’t survive scrutiny in a high school moot court competition. Justice Douglas Herndon was being kind when he called such reasoning “disingenuous.”
It remains to be seen, however, whether the justices will tackle the issue at hand or again cite technicalities to delay judgment. Chief Justice James Hardesty suggested that it might be proper for the lower courts to more completely examine the matter before the high court steps in.
Either way, the court won’t be able to avoid the question much longer. At least one other lawsuit challenging public employees in the Legislature is pending and defense attorneys continue to raise challenges in cases involving Ms. Scheible and Nicole Cannizzaro, a second Clark County prosecutor who serves in Carson City.
The state’s separation of powers clause is clear — and it’s well past time for Nevada’s highest court to recognize that. Meanwhile, LCB attorneys should stop providing dubious legal cover for the Democratic majorty to skirt the state constitution.