Separation of Powers Lawsuit

Defending the Constitution: Nevada Policy’s Separation of Powers Lawsuit

Nevada’s Separation of Powers doctrine divides the powers of the government into three distinct categories: Legislative, Executive and Judicial.

Pursuant to the Nevada Constitution, “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.”

Yet, for years numerous Nevada government employees have simultaneously served as state legislators, in plain violation of Nevada’s Separation of Powers doctrine.

This practice has undermined the principle of representative government and eroded the Legislature’s ability to truly serve the public interest.

After all, 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 it.

The conflict of interest that results from government employees serving as legislators has led to a Legislature that serves the needs of government, rather than the needs of ordinary Nevada citizens and taxpayers. This means higher taxes, bloated bureaucracies and reduced governmental accountability and educational choice.

This is why Nevada Policy has filed a lawsuit requesting the courts to finally enforce Nevada’s Separation of Powers doctrine and prohibit anyone from serving in multiple branches of government at the same time.

If you believe government should follow the constitution, please consider making a tax-deductible donation today to help fund our Separation of Powers lawsuit!

 

Case Timeline

 

11/19/20

The judge-made doctrine of standing strikes again! Clark County District Court Judge Jim Crockett sided with the dual-serving legislators and dismissed our lawsuit, citing a lack of standing. Needless to say, we believe the judiciary has a fundamental obligation to ensure the constitutional limits imposed upon government are enforced and, as such, will be appealing to the state supreme court. Stay tuned!

Related docs: (1) Review-Journal story on the dismissal (2) NPRI Reply: Judge’s ruling would make enforcement of the Separation of Powers impossible


11/10/20

Clark County District Court Judge Richard Scotti has overturned a conviction obtained by Prosecutor and State Senator Melanie Scheible, citing the fact that Scheible “did not have the legal authority to prosecute” due to her serving simultaneously as a state legislator, in violation of Nevada’s Separation of Powers doctrine.

Crucially, Scheible advanced the same set of arguments being put forth by the offending dual-service legislators named in our lawsuit. Judge Scotti rejected these arguments in their entirety, noting that they were mostly fabricated and had no basis in law.

Related docs: Prosecutor and State Senator Melanie Scheible Violated the Nevada Constitution, Judge Rules


10/15/20

As indicated in our 9/30/20 update, the LCB is misrepresenting the law in an effort to intervene in this lawsuit. Because intervention would lead to unnecessary delays and added costs, NPRI has filed a formal opposition to this motion. The motion exposes the deceptive practices employed by the LCB, such as the omission of key parts of relevant statutes.

Separately, NPRI has filed a motion to serve Glen Leavitt, James Ohrenschall and Melanie Scheible by publication. This is required when someone is unreachable or otherwise refuses to accept service documents.

When a service processor contacted her by phone, for example, Deputy District Attorney and State Senator Melanie Scheible stated she was unwilling to accept the service documents and refused to provide a convenient date and time as to when the processor could provide her with the documents.

Thankfully, Nevada state law permits “service by publication” for circumstances like these, which is explained in more detail in our filing linked below.

Related docs: (1) NPRI Opposition to LCB’s Motion to Intervene, (2) Motion to Serve Defendants Glen Leavitt, James Ohrenschall, and Melanie Scheible by Publication.


10/5/20

Nevada’s Separation of Powers clause is remarkably clear, so why have so many legislators been able to violate it for so long? The answer can be found in the judge-created doctrine of “standing,” which requires plaintiffs to prove that they have suffered a specific, particularized harm in order to initiate a lawsuit.

While this rule makes sense for private actions, it greatly restricts the ability of Nevadans to file legal challenges when government officials violate the constitution, as the harm created from such conduct tends to be generalized and abstract in nature, not specific and particularized.

Thankfully, the Nevada Supreme Court recently established a public-interest exception to this rule, which allows plaintiffs to challenge the constitutionality of legislative appropriations, even without demonstrating a specific, particularized harm. We believe our case qualifies for this exception and have argued accordingly.

Related docs: NPRI’s Opposition to Motion to Dismiss


9/30/20

The Legislative Counsel Bureau (LCB) is a governmental entity that aids the Legislature on a variety of matters, ranging from administrative to legal issues. State law permits the legal division of the LCB to intervene on behalf of the Legislature in legal actions in the following two scenarios:

  1. When someone files a lawsuit alleging that the Legislature violated the constitution, like the Senate GOP lawsuit, which argues that the Legislature passed revenue-increasing bills without the constitutionally required two-thirds majority support.
  2. When someone challenges the enforceability of a law, resolution, initiative, referendum or other legislative or constitutional measure, on the grounds that it is ambiguous and unclear, or that it is preempted by federal law.

The LCB has disingenuously argued that our Separation of Powers lawsuit falls under scenario 2 and it is thus entitled to intervene in the lawsuit. Our lawsuit, however, does not ask that the Separation of Powers clause, or any other law or constitutional measure, be invalidated on the grounds that it is unclear or otherwise unenforceable. Our lawsuit instead asks the court to enforce the constitution. The LCB’s motion is thus “deliberately misleading,” according to NPRI Vice President Robert Fellner.

“There is no basis for requiring taxpayers to pay for the LCB to intervene in this lawsuit,” Fellner said. “This is just the latest example of the LCB ignoring, distorting or otherwise misrepresenting the law in an effort to further their primary mission of ensuring legislators can operate outside the confines of the state constitution.”

Related docs: (1) Resolution Authorizing LCB Intervention, (2) NPRI Reply Letter to LCB Legal Counsel


7/9/20

Nevada Policy formally files a lawsuit in Clark County District Court, alleging that nine state legislators are in violation of the constitution due to their dual service as government employees.

Related docs: (1) Lawsuit: Nevada Constitution forbids government employees from serving in the Legislature (2) Amended Complaint

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