Everyone agrees that Senator Melanie Scheible, D-Las Vegas, is a member of the Nevada Legislature.
We all saw her get elected in 2018. There are pictures.
And everyone also agrees that Scheible’s full-time job is to prosecute suspected criminals as an assistant district attorney for Clark County.
What lawyers were discussing in the Nevada Supreme Court Thursday was whether Scheible should be allowed to prosecute criminals and serve in the state legislature at a time.
The controversy revolves around a short passage from the Nevada Constitution, Article 3, Section 1: “The powers of the government of the State of Nevada will be divided into three distinct departments: the legislature, the executive and the judiciary; and no person entrusted with the exercise of powers properly belonging to one of these departments shall exercise functions belonging to one of the others.
As a state senator, Scheible clearly wields the powers of the legislature by drafting laws, passing bills, and chairing the judicial committee.
But is it exercising executive functions when prosecuting suspected criminals?
Defense attorney Craig Mueller says yes. He got a district court judge to agree with him – throwing two cases involving people Scheible has been convicted of impaired driving – on the grounds that his lawsuits violate the separation of powers. District Attorney Steve Wolfson appealed, arguing that Scheible (and his colleague, State Senator Nicole Cannizzaro, Chief Deputy Attorney General) are perfectly capable of doing both tasks without breaking the constitution.
Judges closely questioned the two sides for more than an hour on Thursday.
Kevin Powers, chief counsel for the Legislative Counsel Bureau, aroused the most skepticism when he argued that only senior officials (think the district attorney or attorney general) exercise the “sovereign functions” of executive power, while “simple employees” like Scheible and Cannizzaro only perform the functions of assistants.
Several judges questioned this reasoning, and it is understandable. Wolfson is not personally in the courtroom when Scheible pursues suspected drunk drivers; it is up to her to defend the case. She is not a simple employee! She represents the people of the state of Nevada. In fact, prosecuting criminals should be seen as one of the most essential functions of the executive.
Another judge raised the specter of what the public might think of Scheible’s dual service. It is literally possible for him to vote on the final passage of a bill on the last day of the legislature (a Monday), to have the bill signed by the governor on Monday evening and to be at work Tuesday morning to enforce the very law she just helped pass.
But if you’re expecting an open and closed case, this isn’t it. The judges asked if an appeal of a criminal case was the best place to decide a constitutional question that had been brewing for decades. Would it not have been better if the issue had been raised before the prosecution even began, in a different legal process, so that the fundamental issues as they apply specifically to Scheible could be fully discussed? Couldn’t a defense lawyer just ask a judge to disqualify a lawmaker-prosecutor on their first appearance in court?
No one can – or should – ever predict what an appeals court will do with a case, but it’s entirely possible to see judges sending it back for more work rather than making a final decision. .
On the other hand, other members of the bar have started to raise the issue in due course, and the judges know that this issue will sooner or later return to their desks. (A separate case targeting all public employees who sit in the Legislature is also pending.) The question of a final decision is not a question of if, but when and how.
Meanwhile, on the same day the Supreme Court heard oral argument, Scheible announced that she was running for another term in the state Senate, citing her work on education, health care and gender equality. remuneration for women. “I am running for re-election because I know there is still work to be done and I am ready to roll up my sleeves and keep fighting for the Nevadans.”
Indeed, Scheible can do much more than that. It may have its name in a historic case that finally gives us an answer on the elusive separation of powers clause.