STEVE SEBELIUS: Court must decide if Scheible’s ‘function’ violates constitution

Everybody agrees state Sen. Melanie Scheible, D-Las Vegas, is a member of the Nevada Legislature.

We all saw her get elected in 2018. There are pictures.

And everybody also agrees that Scheible’s full-time job is prosecuting alleged criminals as a deputy district attorney for Clark County.

What attorneys arguing before the Nevada Supreme Court on Thursday were debating was whether Scheible should be allowed to prosecute criminals and serve in the state Legislature at the same time.

The controversy centers around a short passage in the Nevada Constitution, Article 3, Section 1: “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.”

As a state senator, Scheible clearly exercises the powers of the legislative branch by drafting laws, voting on bills and serving as chair of the Judiciary Committee.

But does she exercise the functions of the executive branch when she prosecutes alleged criminals in court?

Defense lawyer Craig Mueller says yes. He got a District Court judge to agree with him — tossing two cases involving people who Scheible got convicted of driving under the influence — on grounds that her prosecution violates the separation of powers. District Attorney Steve Wolfson appealed, arguing Scheible (and fellow state Sen. Nicole Cannizzaro, a chief deputy district attorney) are both perfectly able to do both jobs without offending the constitution.

Justices closely questioned both sides for more than an hour Thursday.

Kevin Powers, the chief lawyer for the Legislative Counsel Bureau, aroused the most skepticism when he argued that only top public officers (think the district attorney or the attorney general) exercise the “sovereign functions” of the executive branch, while “mere employees” such as Scheible and Cannizzaro only carry out duties as assistants.

Several justices questioned that reasoning, and understandably so. Wolfson is not personally in the courtroom when Scheible goes after alleged drunken drivers; it’s on her to make the case. She’s no mere employee! She stands for the people of the state of Nevada. In fact, prosecuting criminals has to be considered one of the most quintessentially executive branch functions there is.

Another justice raised the specter of what the public might think of Scheible’s dual service. It’s literally possible for her to vote on final passage of a bill on the last day of the Legislature (a Monday), have the governor sign the bill Monday night and be at work on Tuesday morning enforcing the very law she just helped pass.

But if you’re expecting an open and shut case, this is not that. Justices asked whether an appeal from a criminal matter was the best venue to decide a constitutional issue that’s been percolating for decades. Would it not have been better for the issue to be raised before the prosecutions even commenced, under a different legal proceeding, so the core issues as they apply specifically to Scheible be fully discussed? Couldn’t a defense lawyer simply ask a judge to disqualify a legislator-prosecutor during their first appearance in court?

No one can — or should — ever predict what an appellate court will do with a case, but it’s entirely possible to see justices kicking this one back for more work rather than making a final decision.

On the other hand, other members of the defense bar have begun to raise the issue at the proper time, and justices know this question will be back on their desks sooner or later. (A separate case targeting all public employees who serve in the Legislature is also pending.) The question of a final adjudication is not a matter of whether, but when and how.

In the meantime, on the very day the Supreme Court heard oral arguments, Scheible announced she was seeking another term in the state Senate, citing her work on education, health care and equal pay for women. “I am running for re-election because I know that there is still work to be done and I am ready to roll up my sleeves and keep going to bat for Nevadans.”

Indeed, Scheible may do far more than that. She may have her name on a history-making, precedential case that finally gives us an answer on the elusive separation of powers clause.

Contact Steve Sebelius at SSebelius@reviewjournal.com. Follow @SteveSebelius on Twitter.