Judge holds Separation of Powers Clause means just what it says

By Thomas Mitchell
On Monday, Nov. 9, a Clark County District Court judge threw out a DUI conviction because the prosecutor in the case also serves in the state Legislature, a violation of the Nevada Constitution Separation of Powers Clause.
Judge Richard Scotti wrote: Appellant Jennifer Plumlee was deprived of her Constitutional rights of procedural due process because her prosecutor, Deputy District Attorney Scheible, also served as a Legislator at the time of the
trial, in violation of the Separation of Powers doctrine which doctrine exists as a fundamental feature of American government, and as an express clause in the Nevada Constitution. Nev. Const. Art. 3, Sec. 1. An individual may not serve simultaneously as the law-maker and the law-enforcer of the laws of the State of Nevada.
The plain and unambiguous language of the Nevada Constitution is that: The powers of the Government of the State of Nevada shall be divided into three separate departments, —the Legislative, —the Executive and the Judiciary; and 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.
Nev. Const. Art 3, sec. 1. This is commonly known as the Separation of Powers clause. It is undisputed that Prosecutor Scheible was a person charged with the exercise of powers within the legislative branch of government at the time of the trial. Further, there is no reasonable dispute that, as prosecutor, she was charged with the exercise of
powers within the executive branch. the enforcement of the laws of the State of Nevada are powers that fall within the executive branch of the government of the State of Nevada. See Nev. Const. Art. 5, sec. 7.
Prosecutor Scheible was enforcing the laws of the State of Nevada, and representing the State of Nevada, and thus was exercising the powers delegated to her within the executive branch. It is not mere coincidence that District Attorneys are frequently referred to as the State or the government. Deputy District Attorney Scheible did not
have the legal authority to prosecute Appellant, thus the trial was a nullity.
The Nevada Separation of Powers Clause has been flouted for decades, as an assortment of bureaucrats have successfully won seats in the Legislature. The principle was embodied in the founding documents of this country.
James Madison wrote in Federalist Paper No. 47, “The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Thomas Jefferson wrote in “Notes on the State of Virginia” in 1784: “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. … An elective despotism was not the government we fought for; but one which
should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
In a 1967 case, the Nevada Supreme Court flatly stated, “The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”
In 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy the ongoing skirting of the Constitution. Heller asked the court to find that service in the Legislature by unidentified executive branch employees violates the concept of separation of powers and to direct the Legislature to enforce the Separation of
Powers Clause. But the court ruled that doing so would violate — wait for it — the Separation of Powers Clause, because the Constitution also states that the Senate and Assembly are to determine the qualifications of their
members, thus the judicial branch telling the legislative branch who its members may be violates the Separation of Powers Clause. Got it?
The court did allow that “declaratory relief could be sought by someone with a ‘legally protectible interest,’ such as a person seeking the executive branch position held by the legislator.”
Since then, the Nevada Policy Research institute has filed a lawsuits on behalf of people seeking the executive branch jobs of lawmakers, but to no avail.
NPRI’s Vice President Robert Fellner said of Scotti’s decision, “As the decision by Judge Scotti demonstrates, the judiciary has an obligation to defend the rights of Nevadans against government overreach and unconstitutional conduct. We are hopeful the Nevada Supreme Court will do just that when our own case inevitably reaches them.”
The Las Vegas newspaper quoted Clark County District Attorney Steve Wolfson as saying, “Based upon Judge Scotti’s ruling, we are considering our options, which includes going to the Nevada Supreme Court. We haven’t made a decision, but we will be making a decision in the semi-near future.”
Over the years it has been argued that employees of local governments do no violate the Separation of Powers Clause, but Nevada is a Dillon Rule state. The state limits the power of local governments to those expressly granted by the Legislature, local governments are basically subsidiaries of the state. Employees of local governments essentially are serving in the executive branch of state government, and also should be barred from serving as a lawmaker under the Constitution.
Let’s hope the state Supreme Court weighs in soon and settles this significant issue.

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