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!
Earlier today, the Nevada Supreme Court denied our request to hear this case on an expedited basis. The Court did, however, announce the briefing schedule, which calls for us to file our Opening Brief on June 12, 2023.
Earlier this week, Nevada Policy filed a motion with the state supreme court requesting that our case be heard on an expedited basis. The Legislature and dual-serving legislators, however, have filed their own motion asking the Nevada Supreme Court to suspend all proceedings until the conclusion of the 2023 legislative session. We will update this page once the Court issues its ruling in response to these motions.
Related Docs: NPRI’s Request for Expedited Briefing
Nevada Policy today filed its Notice of Appeal with the district court. This will allow us to finally bring this issue to the Nevada Supreme Court for a direct ruling on the merits. Now that we have been granted standing, our forthcoming briefs before the Nevada Supreme Court will focus exclusively on the merits of this case—whether Nevada’s constitutional separation of powers doctrine prohibits legislative dual service. We estimate that briefing will likely begin in early summer, but we will continue to update this page with any new information or developments that occur in the meantime.
Related Docs: (1) Notice of Appeal (2) Case Appeal Statement (3) NPRI appeals ruling in Nevada separation-of-powers case
Clark County District Court Judge Jessica Peterson issued a ruling dismissing our lawsuit today, on the grounds that Nevada’s separation of powers clause only applies to “public officers” who exercise the so-called “sovereign” functions of the state. The Nevada constitution, however, prohibits any “person” belonging to one branch of government from exercising “any” function of another branch.
In addition to badly misconstruing the plain text, this argument has already been emphatically rejected by binding, Nevada Supreme Court precedent, when the state high court previously held that “non-sovereign,” “ministerial functions” are sufficient to trigger separation of powers violations. Indeed, we think it is a testament to the strength of our legal argument that the offending dual-serving legislators have no recourse but to ask the court to rewrite the constitution in this manner. Thankfully, courts must follow the text as it is written, which we are confident the Nevada Supreme Court will do in our forthcoming appeal.
One of the most glaring legal errors in the district court’s opinion was the court’s failure to recognize that constitutional rules bind the government, whether they like it or not. Thus, the fact that the Legislature hasn’t enacted a ban on legislative dual service is utterly irrelevant to whether the constitution forbids that practice. Indeed, it is precisely because the government will not restrain itself that the constitution was written!
We look forward to giving the Nevada Supreme Court an opportunity to follow its own, binding precedent on this issue—which squarely and emphatically rejects the line of reasoning put forth by the district court—in our forthcoming appeal.
Related Docs: Clark County District Court Order Dismissing Separation of Powers Lawsuit on Grounds that “Any Functions” Means Only “Sovereign” Functions
Nevada Policy’s efforts to enforce the constitutional separation of powers doctrine continues full steam ahead, with the Institute just filing a new motion to include seven newly elected state legislators to the lawsuit. The just-elected legislators appear to have retained their employment in the executive branch of government, which violates the constitutional prohibition that forbids legislators from “exercising any functions” related to the other two branches of government.
The lawsuit is currently pending before Clark County District Court Judge Jessica Peterson, who is considering the Defendants’ various motions to dismiss. We are hopeful that a ruling denying all those motions will be issued in early 2023.
The government is doing everything possible to prevent our case from proceeding. Among other frivolous claims, the Legislative Counsel Bureau is seeking to have our case dismissed on the grounds that we did not properly name the State of Nevada as a defendant, as is required when one files a civil tort action against the State. Our lawsuit, however, is not a tort action (torts include things like assault, battery, trespass, or the destruction of property) and thus this claim is absurd. The remaining dual-serving legislators have likewise filed similar frivolous motions, all of which are clearly designed to delay and otherwise increase the costs of litigation in an attempt to prevent a final ruling on the merits.
A hearing on these motions is scheduled for August 4, 2022 at 2:00 pm before Clark County District Court Judge Jessica Peterson. NPRI trusts the Court will see these arguments for what they truly are—unconscionable delay tactics—and disregard them in their entirety.
After Nevada Policy’s landmark win before the state supreme court in April, we are now back before the district court, with briefing set to begin later this month. In the meantime, be sure to check out the video below for a brief recap of how we got here, and what it will take to see this fight through to the end.
Thanks to Nevada Policy’s ongoing lawsuit, there are no longer any prosecutors simultaneously serving in the Nevada Legislature! Nevada State Senators Melanie Scheible and Nicole Cannizzaro have both resigned from their jobs as county prosecutors. Our case will continue as we try to secure a ruling on this matter as it applies to all government employees, not merely prosecutors. Nonetheless, this is a monumental development that will make the Legislature much more responsive to the public going forward, particularly on issues related to criminal justice reform.
Related Docs: Nevada Senator to Leave DA’s Office
In a unanimous decision, the Nevada Supreme Court today ruled in favor of Nevada Policy in the Institute’s ongoing separation of powers lawsuit. In a landmark, precedent-setting ruling, the Court expanded its rules regarding taxpayer standing.
Today’s decision will make it easier for all Nevadans to bring constitutional challenges such as these, thereby helping to ensure that the Nevada government operates within the confines of the state constitution.
Now that the Nevada Supreme Court has formally recognized Nevada Policy as an appropriate party to bring this challenge, the case goes back to the district court, which now must address the fundamental question raised by the Institute’s lawsuit: whether state legislators can simultaneously serve as government employees.
After more than 70 years of waiting, today’s state supreme court ruling means that Nevadans are finally going to have an answer to that question.
Related Docs: Nevada Supreme Court Rules in Favor of NPRI!
Oral arguments were held yesterday and now all we can do is wait for a decision from the court. Click below to read our thoughts on the hearing and what’s yet to come.
Related Docs: Oral Arguments Recap
Oral arguments have been scheduled for November 3, 2021 at 2pm before the Nevada Supreme Court! You can watch live by going to the Nevada Supreme Court’s YouTube page about 5 minutes before the arguments are scheduled to commence. With briefing already completed, this will be the last chance we have to make our case to the Court before they issue a ruling. You don’t want to miss it!
Related Docs: The Nevada Supreme Court has an obligation to enforce the constitutional limits imposed upon government: A commentary on standing
We’re almost there! Today, Nevada Policy filed its Reply Brief before the state supreme court, which is traditionally the final stage in the briefing process. The Court may now elect to hold oral arguments or simply issue its ruling based on the briefs already submitted. The below section of the Brief gets to the heart of the matter:
NPRI respectfully asserts that when the Court reviews the jurisprudence of other jurisdictions that have previously expanded public importance standing, it will find the instant case ripe for the same consideration. Separation of powers, as implicated by Respondents’ dual employment, is the most fundamental of public rights. As articulated by the Court more than a half century ago, separation of powers in this regard is “probably the most important single principle of government declaring and guaranteeing the liberties of the people.” Galloway v. Truesdell, 83 Nev. at 20, 422 P.2d at 242.
The conduct of the Respondents has, and will likely, continue to repeat and future guidance on the issue is long overdue. And, NPRI, just like public interest foundations and citizens in other states simply seeks to be the voice for a paramount public concern. To deny NPRI standing would be tantamount to rendering separation of powers superfluous if the violation of its plain mandate is too insignificant to enforce.
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Related Docs: (1) Nevada Policy’s Reply Brief (2) The Nevada Supreme Court has an obligation to enforce the constitutional limits imposed upon government: A commentary on standing
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!
Related Docs: All parties agree: dual-serving legislators are bad for democracy
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.
Related Docs: (1) Case Appeal Statement (2) Judge’s ruling would make enforcement of the Separation of Powers impossible
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.
Related Docs: (1) NPRI Motion for Clarification on Judge Crockett’s Order (2) Judge’s ruling would make enforcement of the Separation of Powers impossible
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.
Related docs: Prosecutor and State Senator Melanie Scheible Violated the Nevada Constitution, Judge Rules
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.
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.”
Related docs: (1) Resolution Authorizing LCB Intervention, (2) NPRI Reply Letter to LCB Legal Counsel
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