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!
Nevada Policy today formally requested the state supreme court to declare unconstitutional the practice of allowing government employees to serve as state legislators.
While the Nevada Constitution bars state legislators from exercising “any functions” related to any other branch of government, this prohibition has been ignored for over 70 years, leading to a litany of abuses.
“That the judiciary is obligated to enforce the constitutional rules imposed upon government, and that their failure to do so would lead to tyranny, has been understood by the American judiciary since before Nevada even existed,” said Nevada Policy Vice President Robert Fellner.
“Dual service dilutes, if not destroys, the very foundation upon which the concept of Nevada’s representative government rests — that the Legislature enacts the will of the people rather than the will of the government.
“In recognition of this fact, the Nevada Supreme Court previously said that vigorous enforcement of the separation of powers doctrine is necessary for the very attainment of freedom itself,” Fellner added.
“Now we just need to see if the Court still believes Nevadans are a free people who deserve to be protected from such abuses.”
Related Docs: Nevada Policy’s Opening Brief
The Clark County Public Defender’s Office has just filed an amicus brief asking the Nevada Supreme Court to uphold Judge Scotti’s ruling — which held that a state legislator cannot simultaneously act as a state prosecutor. And they are not alone. The Federal Public Defender for the District of Nevada is also arguing for enforcement of Nevada’s separation of powers doctrine, as articulated by the Judge Scotti ruling, in a just-filed motion in yet another case.
The introduction of these powerful new allies means it is all but certain that the effort to enforce Nevada’s constitutional separation of powers doctrine will finally have its day in court.
So what, exactly, is so bad about having government employees serve simultaneously as state legislators?
One former dual-serving legislator said he voted for specific legislation in exchange for a promised pay raise and promotion.
Another elected official described dual service as a situation “fraught with danger.”
Yet another described how dual service transformed the Legislature into “an oligarchy,” that serves the “agenda” of law enforcement, rather than doing what “most people” want.
To explore the full history of the shocking abuses associated with dual service, please click here.
And remember to return to this page on June 8, 2021, which is when Nevada Policy will file its opening brief before the Nevada Supreme Court!
Unfortunately, the Nevada Supreme Court denied our request to issue an expedited ruling on the already fully briefed issues before them. This means the case will proceed through the normal process, and thus take several months or longer to complete. The timeline set forth by the Court requires us to file our opening brief on June 8, 2021, at which point we will update this page again with a link to that brief and any additional information regarding the case timeline.
Nevada Policy today asked the state Supreme Court to issue an expediting ruling on its Separation of Powers challenge.
“The issues before the court are matters of pure law and are fully briefed,” Nevada Policy Vice President Robert Fellner said. “Given the profound importance of this issue, which goes to the very heart of our system of representative government, it is imperative that the Court exercise its discretion to hear this matter on an expedited basis.”
Related Docs: NPRI’s Motion for Expedited Briefing
Today, the Nevada Policy Research Institute filed an appeal with the Nevada Supreme Court regarding the Institute’s ongoing efforts to enforce the Separation of Powers doctrine.
Nevada’s Separation of Powers doctrine states that the Government of Nevada is divided into three co-equal branches, and no one charged with exercising the powers of one branch may exercise “any function” pertaining to the others.
The just-filled appeal is centered on the judge-made doctrine of standing, which lower courts have cited to avoid ruling on the underlying merits of the case: whether government employees can simultaneously serve as state legislators.
“As the Nevada Supreme Court has already expressed, the Separation of Powers doctrine is ‘probably the most important single principle of government’ safeguarding Nevadans’ liberties,” said Nevada Policy Vice President Robert Fellner. “For this reason, Nevada Policy believes the judiciary must allow any citizen the opportunity to challenge such blatantly unconstitutional behavior.”
“Thankfully, the Nevada Supreme Court recently adopted a public-importance exception to their standing rules, which should ensure the judiciary finally fulfills its obligation to ensure the Nevada Constitution is faithfully and fully enforced,” Fellner said.
As indicated in our last update, Judge Crockett dismissed our lawsuit on the grounds that we lacked standing to sue — rejecting our argument that a Separation of Powers challenge qualifies for the public-importance exception recently established by the Nevada Supreme Court.
But, as previously explained, Judge Crockett did not provide any rationale for this decision.
Nevada Policy thus filed, and Judge Crockett has since granted, a motion for clarification. A hearing has been set for December 17th, at which time Judge Crockett will provide reasons as to why he believes the public-importance exception does not apply to this case.
This will allow the Nevada Supreme Court to be in a better position to fully address this issue when we file our forthcoming appeal, while also helping to reduce the chance of any unnecessary delays in the appeals process.
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
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.
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.
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
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:
- 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.
- 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.”
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.