By Ken Ritter Associated Press
Saturday, September 11, 2021
LAS VEGAS — The Nevada Supreme Court on Thursday took up a thorny question in a state where the part-time Legislature meets every two years and many lawmakers hold full-time jobs in addition to elected positions: Should a person who makes the law also enforce the law?
Justices made no immediate decision after more than an hour of oral arguments in a case focusing on the prosecutorial work of a deputy Clark County district attorney, Melanie Scheible, who is also Democratic state senator who announced Thursday's she's running for re-election in 2022.
The high court is being asked to reverse a decision by former Clark County District Court Judge Richard Scotti last year to cite Scheible's dual roles and throw out the convictions of two Henderson residents who had been convicted of driving under the influence.
Scotti called it "fundamental to American jurisprudence that a criminal defendant shall not be prosecuted by a person who is simultaneously the law-maker and the law-enforcer of the laws of the State of Nevada."
The Nevada Constitution prohibits a person from serving two elected offices, or in multiple branches of government at the same time.
Through questions, the high court appeared to acknowledge what Justice Douglas Herndon termed "the huge amount of distrust the public could feel from their elected legislative representatives also being tasked with enforcing the very laws that they are elected to enact."
"It is an issue that needs to be resolved," agreed Craig Mueller, the attorney whose clients Scotti said had been denied due process.
But Chief Justice James Hardesty and others on the seven-member court raised procedural questions about Mueller's filings and about being asked to decide the constitutional question based on a criminal appeal.
Hardesty said he was troubled that Scheible was not a party to the case about her positions; that the ruling could have a possibly wide-ranging effect; and that the issue of "dual service" had not been litigated in a lower court.
"Nothing in the record offers any guidance with respect to ... matters that should be appropriately developed procedurally," Hardesty said. "None of that happened in front of Judge Scotti, that I can see."
The subject of dual roles also is the focus of a separate lawsuit by the Nevada Policy Research Institute, a conservative think tank.
It argues that nine public employees including the two top Democrats in the state Legislature — Senate Majority Leader Nicole Cannizzaro and Assembly Speaker Jason Frierson — can't hold public jobs and elected office at the same time. Cannizzaro is a Clark County prosecutor. Frierson is a deputy public defender.
Mueller noted that Cannizzaro and Scheible were leaders among Democrats enacting several criminal justice laws during this year's Legislature.
Alexander Chen, a chief deputy Clark County district attorney, told the justices that thousands of criminal cases could be affected by the court's decision. He insisted the lawmakers' roles in Carson City and in the Las Vegas courthouse were separate.
"It is the state's hope today that this court will explicitly rule that serving as a deputy district attorney does not violate the separation of powers clause of the Nevada Constitution," Chen said.
Deborah Westbrook, an attorney and friend-of-the-court litigant representing public defenders and Nevada Attorneys for Criminal Justice, pointed to "plain language" of the state constitution separating legislative, executive and judicial branches of government.
It prohibits "persons charged with the exercise of powers properly belonging to one of the three departments ... from exercising functions appertaining to the others," she noted.
Allowing a state legislator to prosecute violations of state law is exactly what the constitution aimed to prevent, Westbrook said, adding: "As Justice Herndon pointed out, it undermines confidence in our government and our criminal justice system."
Hardesty asked Westbrook whether the same rule would apply to a public defender serving in the state Legislature.
"We don't represent the state," the attorney answered.
