The Nevada Supreme Court building Monday, March 4, 2019.
Photo: David Calvert / The Nevada Independent
By Ken Ritter Associated Press
Friday, April 22, 2022
LAS VEGAS — The Nevada Supreme Court said Thursday it wants to finally settle a key question that has hung for decades over public employees who are elected to the state's part-time Legislature: Should a person who makes the law also enforce the law?
The seven-member state high court unanimously called for more fact-finding hearings by a lower court judge on a Nevada Policy Research Institute lawsuit that would unseat nine public employees, including the two top Democrats in the state Legislature.
"Few would support rules that limit their own power, which is precisely why the power to write the law must be kept separate from those tasked with enforcing the law," institute executive Robert Fellner said in a statement hailing the ruling.
A 15-page decision authored by Justice James Hardesty acknowledged the extraordinary importance of deciding whether the state's constitutional separation-of-powers clause applies to elected officials who hold full-time taxpayer-funded jobs.
It called separation of powers "probably the most important single principle of government declaring and guaranteeing the liberties of the people."
The Nevada Constitution prohibits a person from serving two elected offices or in multiple branches of government at the same time.
The case before the court focuses on nine Las Vegas-area lawmakers — seven Democrats and two Republicans — variously employed by the Clark County district attorney and public defender offices, the Regional Transportation Commission of Southern Nevada and the Clark County School District.
The top Democrats are Senate Majority Leader Nicole Cannizzaro, a Clark County prosecutor, and Assembly Speaker Jason Frierson, a county deputy public defender.
The court overturned a finding by a now-retired Clark County District Court judge that Nevada Policy Research Institute, a conservative and libertarian think tank, lacked legal standing to bring its lawsuit because the organization did not show it was personally injured.
The justices acknowledged that the institute did not demonstrate personal injury and noted the case did not challenge "an expenditure or appropriation" by the Legislature.
"To have standing to challenge an unconstitutional act, a plaintiff generally must suffer a personal injury traceable to that act," the court said.
However, the ruling praised the Nevada Policy Research Institute for its sincerity in challenging legislators' dual employment and its "ability to vigorously litigate this important, recurring issue." It granted an exception to let the case proceed.
"Our refusal to grant standing under these circumstances could result in serious public injury — either by the continued allegedly unlawful service of the (nine defendants), or by the refusal of qualified persons to run for office for fear of acting unconstitutionally — because this unsettled issue continues to arise," the court said.
The court has yet to rule on another pending separation-of-powers case involving Democratic state Sen. Melanie Scheible of Las Vegas, whose full-time job is deputy Clark County district attorney. In that case, a state court judge in Las Vegas overturned the Henderson woman's 2018 drunk driving conviction on the grounds that Scheible is an elected state senator.
