Key State Senators End Dual Service as Nevada Policy Lawsuit Proceeds

Nevada Policy’s long-running effort to force state legislators to abide by the state constitution is having an impact.

Both Clark County prosecutors serving in the legislature recently resigned their positions with the Clark County District Attorney’s office. Nevada State Sen. Melanie Scheible resigned as a prosecutor after the Nevada Supreme Court ruled unanimously in favor of Nevada Policy having standing in the latter’s separation of powers lawsuit. Sen. Nicole Cannizzaro stepped down from her role as deputy district attorney earlier this year, but it’s unclear if the move came before or after the Supreme Court ruling.

The conflict of interest that arises from dual-serving legislators was especially pronounced during recent legislative sessions, particularly in matters related to criminal justice reform. In 2019, Cannizzaro, the Senate majority leader, killed at least 16 Democrat-sponsored criminal justice bills, including a bipartisan attempt to reform civil asset forfeiture. Many bills died without even being put to a vote.

During last year’s session an Assembly bill which would have abolished the death penalty died when Scheible, Senate Judiciary Committee chair, declined to give it a hearing. Among those who opposed the bill was Scheible’s boss, Clark County District Attorney Steve Wolfson.

The dual roles held by Cannizzaro and Scheible led many to question whether the interests of their colleagues in law enforcement were given precedence over the will of the public.

And while both are no longer prosecutors, they are still in the legislature, meaning passing criminal justice reform bills such as those pushed by Nevada Policy since 2017 may not be much easier.

Nevada Policy has long argued that legislators who hold public sector jobs are in violation of the state’s separation of powers clause. On April 21, the state Supreme Court expanded its rules regarding taxpayer standing in a landmark, precedent-setting decision. The decision meant that Nevada Policy’s lawsuit could proceed.

In addition, two Nevada Supreme Court justices stated last week that Scheible could not hold jobs as a Clark County prosecutor and state senator simultaneously. The conclusion came in a dissent in a criminal case, and it marks the first time the Supreme Court has registered an opinion on the separation of powers clause in connection to members of the state legislature.

“The Nevada Constitution’s separation of powers clause prohibits Senator Melanie Scheible, (D-Las Vegas) from serving as a legislator, passing laws and at the same time working as a prosecutor, in the executive branch, enforcing those laws,” read the dissent by Justices Abbi Silver and Kristina Pickering.

“Therefore, the separation of powers clause forbids legislators who are promoting legislation on behalf of their constituents from concurrently acting as a prosecutor – executing criminal prosecutions through enforcement of state criminal laws,” the ruling adds. “This impingement is ‘repugnant to the constitution.’”

Dual service, a fact of political life in the state for decades, is prohibited by the state Constitution.

Article 3, Section 1 states that the Nevada Constitution divides government into three branches: legislative, executive and judicial, and that “no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”

At present, there are still seven state legislators who hold dual positions – four Democrats and three Republicans – spread among the Clark County School District, Clark Count Public Defenders Office, the Regional Transportation Commission, University of Nevada-Reno, Truckee Meadows Community College and Nevada State College.

Nevada Policy’s lawsuit is continuing full steam ahead, to not only address the seven remaining dual-serving legislators, but all those who would seek to follow them.