Two Supreme Court justices say prosecutor can’t serve in state Senate

Two Nevada Supreme Court justices have concluded that a Clark County prosecutor who also serves in the Nevada state Senate cannot hold both jobs simultaneously.

The conclusion — which came in a dissent in a case filed Wednesday — is the first time the Supreme Court has opined directly on the state constitution’s separation of powers clause as it pertains to members of the Nevada Legislature.

“The Nevada Constitution’s separation of powers clause prohibits Senator Melanie Scheible, (D-Las Vegas) from serving as a legislator, passing laws and at the same time working as a prosecutor, in the executive branch, enforcing those laws,” reads the dissent by Justices Abbi Silver and Kristina Pickering.

“Therefore, the separation of powers clause forbids legislators who are promoting legislation on behalf of their constituents from concurrently acting as a prosecutor — executing criminal prosecutions through enforcement of state criminal laws,” the ruling adds. “This impingement is ‘repugnant to the constitution.’”

Nevada’s constitution divides the government into legislative, executive and judicial branches and says anyone who exercises the powers of one branch cannot exercise the functions of either of the others.

In this case, Samuel Caruso — charged with sexually assaulting two intoxicated women, one a 16-year-old — objected to his prosecution by Scheible, with his lawyer saying the action “lacks constitutional authority.” Clark County District Court Judge Carolyn Ellsworth denied the motion in December 2020, and Caruso appealed.

Not the right time

The majority denied the motion to dismiss, saying Caruso hadn’t proven that dismissal was the proper action. Justices Ron Parraguirre, James Hardesty, Lidia Stiglich and Elissa Cadish specifically avoided ruling on the constitutional issue, saying that matter should wait for a full briefing.

“In reaching this decision we express no opinion on the merits of the separation-of-powers issue,” they wrote.

But the majority went further, criticizing the dissenting justices for opining on the issue without more discussion. “Reaching a conclusion on the merits of the separation-of-powers issue at this time is further concerning as there has not been an opportunity for a full hearing on the issue of dual service, where the parties may develop the facts and where the named parties may participate in proceedings that may affect their employment with the Executive Branch,” the majority wrote.

More to come

Because only two justices joined in the dissent, it has no effect on the state of the law. But it does show there are at least two votes to prohibit at least prosecutors from serving in the Nevada Legislature, if that issue ever comes squarely before the court.

A third dissenting justice — Doug Herndon — wrote his own dissent that Pickering also joined, saying at the very least the court should have entertained the issue now, rather than putting it off.

“Thus, this issue is ripe for this court’s determination, especially considering the procedural posture of this case and the extensive appellate briefing, including amici briefing, and argument that has occurred in this case” and two others raising similar issues, Herndon wrote. “I believe this court must address the constitutional question raised in this matter to ensure the proper disposition of petitioners case below.”

Separate cases also rejected

The court on Thursday issued another order overturning rulings in two other criminal cases prosecuted by Scheible that were appealed on similar grounds.

In that ruling, the court overturned a lower court decision to dismiss two drunk driving convictions that were secured by Scheible, saying that “district court manifestly abused or arbitrarily or capriciously exercised its discretion” because the defendants did not raise the separation of powers argument during their criminal trials. The court’s order sent those cases back to Clark County District Court to consider any unresolved issues.

Pickering was the only justice to dissent in the drunk driving cases, arguing that separation of power issues should have been considered even if it wasn’t brought up in the trial.

“Allegations of a prosecutor’s unconstitutional employment are of such a caliber; thus, the unpreserved error in this case is one that Nevada law suggests a court should consider. The district court was not obviously wrong in doing so,” Pickering wrote.

And a fourth case is also pending. The Nevada Policy Research Institute recently won a victory before the court in a unanimous decision that granted the conservative think tank standing to challenge the employment of all public employees who serve in the Legislature, not just prosecutors. That case must still be argued before a lower court, but an appeal is certain.

Meanwhile, another Democratic state senator who also served as a deputy district attorney — Nicole Cannizzaro — recently left her job as a prosecutor to join a private law firm. Scheible is running for re-election to her District 9 seat this year and has no Democratic opponent in the June 14 primary.

Contact Steve Sebelius at SSebelius@reviewjournal.com. Follow @SteveSebelius on Twitter. Review-Journal reporter Colton Lochhead contributed to this story.

Caruso v. Eighth Judicial District Court by Steve Sebelius on Scribd