News - March 10, 2021 - by Ray Hagar

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The Nevada Supreme Court is currently reviewing a question of  "separation of powers" -- if a member of the Legislature can also work as a prosecutor with the Clark County District Attorney.

Clark County District District Attorney Steve Wolfson said on Nevada Newsmakers that he is concerned that if the ruling goes against dual roles, it may potentially negate previous prosecutions from the two state senators employed by his office -- Melanie Scheible and Nicole Cannizzaro.

"I can't imagine that the court would make their decision retroactive and cause every case that was prosecuted by my two prosecutors to be overturned," Wolfson told host Sam Shad. "I just can't imagine the effect of any decision would be in that fashion."

Assemblyman Steven Yeager, D-Las Vegas and chairman of the Assembly Judiciary Committee, said in an earlier Nevada Newsmakers interview that he shares those concerns.

"I think that if I were in the prosecutor's office, I would be somewhat concerned about what the impact of that would be," he said. "I mean, you certainly don't want cases that were prosecuted by competent prosecutors to be thrown out on, not a technicality, but on something some folks could not foresee. We just need some guidance how to move forward on that issue."

In the landmark case from last year, a district-court judge threw out a Henderson woman's 2018 misdemeanor DUI conviction on the grounds that one of the prosecutors — Scheible — is also an elected state senator and cannot enforce powers that fall within boundaries of the executive branch of government. Scheible, D-Las Vegas, is the Senate Judiciary Committee chair and Cannizzaro, D-Las Vegas, is the senate majority leader.

A lawsuit filed by the Nevada Policy Research Institute last year named nine lawmakers who violate the "separation of powers" law, including Assembly Speaker Jason Frierson, D-Las Vegas, Scheible and Cannizzaro.

The NPRI lawsuit covered lawmakers who also work in public education and regional transportation. The judge in the case threw out NPRI's assertions, saying the conservative think tank lacked standing to bring the charges against the legislators.

The results of the current dual-roles issue could impact more people than Scheible and Cannizzaro, Wolfson said.

"We also have a couple of deputy public defenders who are also members of the Legislature," Wolfson said. "And there is an argument that could be made that is similar to the prosecutors because the pubic defenders, although they don't prosecute cases, they participate in the legal system.

"They argue certain laws," Wolfson said about public defenders. "They argue the application of certain laws and now they are lawmakers themselves. So I would imagine the court will be asked not only to consider the separation-of-powers argument with regard to the prosecutors but also with the public defenders, two or three of them."

Yeager said he does not like the idea of tossing previous convictions if Cannizzaro and Scheible are found to be in violation of the dual-role concept.

"You can certainly say what you want about whether folks should be able to serve in the dual roles, but I don't think that there's anyone who thinks or believes that these are wrongful prosecutions and were not done by competent prosecutors," Yeager said. "So there is a lot of interest to make sure that those remain the final adjudications.

They (Supreme Court) will have to decide the issue that is up in front of them," Yeager said. "They will have to decide. And even if they decide in favor of the plaintiff in this case, then it is a question of what are the remedies?

"Will they just go forward, will they be looking back at cases and start undoing cases?" Yeager said. "I think, generally, there is a reluctance of court to do that, unless there is really a compelling reason to do so."

The dual-role question has come up a handful of times, Yeager said. It has been a topic of conversation on Nevada Newsmakers going back to 2003, archives show.

"I'm not surprised that there is this lawsuit," Yeager said. "Some form of this lawsuit has been filed, I dont know, five, six or seven years in a row, maybe more. But I think we just need some guidance. I feel that the statue is pretty clear that local government employees can serve (in the Legislature) but this may be the new wrinkle on the lawsuits."

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