“The powers of the government of the state of Nevada shall be divided into three separate departments, the Legislative, the Executive and the Judicial; 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.” – The Constitution of the State of Nevada, Article 3, Section 1

The separation of powers clause in the Nevada Constitution has long been a source of debate. The sticking point for many is whether someone who is employed by the state can, at the same time, serve on the Legislature. Separation of powers is vital to a free and fair government without the burden of special interests that benefit those who serve dual roles.

In fact, this issue is so important that many, including myself, believe that no infraction of Article 3 should go unremarked and uncontested. Yvette Williams, chair of the Clark County Black Caucus was quoted in the Nevada Current saying, “When a legislator has a job that’s in direct conflict with legislation that’s come before them, how do we deal with that to make sure that bill gets a fair hearing? This is something that needs to be addressed if the people’s voice is going to be heard.”

Seems fairly cut and dry, right? The Constitution is clear on this issue and, even apart from that clarity, you don’t have to be a legal genius to see how easily there can be a conflict of interest. And yet, here we are, having to fight in court to uphold the clear separation of powers delineated by the Nevada Constitution. Two recent Clark County court cases highlight both sides of this issue.

One was filed by the Nevada Policy Research Institute (NPRI) in July of last year against nine state and local government employees who also serve as state legislators. The suit was rejected in November by Judge Jim Crockett who said that the case lacked “standing”. NPRI intends to appeal maintaining that this kind of work is the court’s obligation. In a press release, Robert Fellner, vice president and director of policy for NPRI said, “Allowing those tasked with carrying out and enforcing the law to also write the law totally and completely undermines the concept of a representative government and is a clear violation of the Nevada Constitution.”

The second case was from a recent DUI conviction appeal before District Court Judge Richard Scotti. He ruled that Melanie Scheible, who serves as a Clark County prosecutor and a state senator, did not have the legal authority to prosecute the case because of her dual roles. In his decision, Judge Scotti said, “An individual may not serve simultaneously as the law-maker and the law-enforcer of the laws of the state of Nevada.” Prosecutors in that case also plan to appeal Scotti’s decision and Clark County District Attorney Steve Wolfson was quoted saying, “We think it’s appropriate and timely for the Nevada Supreme Court to finally weigh in.”

Here we have two cases, one on either side of this separation of powers issue. Hopefully, as these cases are appealed the Supreme Court will look to Article 3 of the Nevada Constitution and clarify that a separation of powers should be exactly that and no single person should be able to hold dual roles in Nevada’s government.

Call to Action: While the courts work to clarify separation of powers, there is something we can do. We must stop electing people to state government who also work in state government. Until this practice is prohibited at all levels, it’s up to us to be knowledgeable on who we elect and where their loyalties are. If their paycheck comes from the government, I have serious doubts they’ll be fighting for “We the People.”

By Whose Authority?

For more information on my Commentary and to see some of my backup research, or if you wonder why I take the position I take, go to www.LyleBrennan.com.

2 Chronicles 7:14 (NKJV) “If my people who are called by My name will humble themselves, and pray and seek My face, and turn from their wicked ways, then I will hear from heaven, and will forgive their sin and heal their land.