Judge: State senator crossed line prosecuting DUI defendant

A Las Vegas judge’s scathing decision to throw out a DUI conviction because the prosecutor also serves as a state senator has raised the issue of separation of powers in Nevada government.

“This Court finds that it is a violation of procedural due process of nearly the highest order for a person to be tried and convicted by a public official who (is) in charge of both writing and enforcing the law,” wrote District Judge Richard Scotti, in an order handed down Monday. “This Court finds that it is fundamental to American jurisprudence that a criminal defendant shall not be prosecuted by a person who is simultaneously the law-maker and the law-enforcer of the laws of the State of Nevada.”

The judge’s decision does not directly affect other cases prosecuted by Nevada Sen. Melanie Scheible, D-Las Vegas, who works as a deputy district attorney in Clark County.

But defense attorney Craig Mueller raised the same issue in another case, and a conservative think tank has filed suit against lawmakers who simultaneously work as public employees, including Scheible and fellow prosecutor and state Sen. Nicole Cannizzaro. D-Las Vegas.

“Deputy DA Scheible may not prosecute individuals for violating statutes she may have had input in writing or amending as that would clearly cross the separation-of-powers line,” Mueller argued. “Because of that the trial was a nullity.”

The judge agreed, throwing out the October 2019 DUI conviction of Jennifer Plumlee in Henderson.

Divided powers

The Nevada Constitution clearly divides government into Legislative, Executive and Judicial branches and states that “…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.”

Robert Fellner, vice president and director of policy for the Nevada Policy Research Institute, the group suing members of the Legislature, lauded Scotti’s decision.

“I think it’s a tremendously important ruling that’s going to have huge ripple effects,” Fellner said, adding that the order marked “the first time a Nevada judge has squarely ruled on this issue.”

Clark County District Attorney Steve Wolfson said that his office had yet to decide whether to appeal the order.

“Based upon Judge Scotti’s ruling, we are considering our options, which includes going to the Nevada Supreme Court,” Wolfson said. “We haven’t made a decision, but we will be making a decision in the semi-near future.”

In July, after Fellner’s group filed a complaint against legislators, Cannizzaro called the lawsuit “a publicity stunt” meant to distract from lawmakers’ efforts to address pandemic-related budget issues.

Scotti wrote that the state’s separation of powers doctrine “exists to safeguard the people against tyranny,” ruling that Scheible, who was elected in 2018, did not have the authority to prosecute Plumlee.

“This Court is not directing the Office of the District Attorney to do or not to do anything,” Scotti wrote. “Rather, this Court is protecting the rights of the accused.”

Differing views

Fellner said prosecutors may not want to appeal the decision because a Supreme Court order unfavorable to the district attorney’s office could prevent deputies from serving as legislators in the future.

“You can certainly see a political reason to not risk that damage,” Fellner said. “So long as it’s a district court ruling, it’s not the law. But I think they’re in a tough spot.”

A host of attorney general opinions dating back decades have been divided on the question, with some banning all service and others allowing it. One — written by then-Attorney General Brian Sandoval in 2004 — said state workers were banned from serving in the Legislature, but local government employees were not, because they were not considered employees of the state executive branch.

The Legislative Counsel Bureau — the nonpartisan attorneys who advise state lawmakers — has said the separation of powers doctrine only bans top officials or supervisors from serving as elected officials, since only they exercise the functions of the executive branch.

Contact David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Follow @randompoker on Twitter.