The latest legal challenge to Nevada’s death penalty really doesn’t have much of anything to do with the death penalty. Because of that, it could wind up being one of the most constitutionally consequential cases in Nevada’s legal history.

The just-filed case involves Alonso Perez, who allegedly shot a total stranger to death in 2016 for disrespecting Perez’s girlfriend at a McDonald’s. After he was arrested, he actually managed to break his handcuffs (meth is a hell of a drug) and escape from the police station in the most Hollywood style imaginable (through the ceiling!) but was recaptured a few days later. He’s also implicated in another unrelated murder and a robbery. The Clark County district attorney’s office is seeking the death penalty against Mr. Perez.

In related news, two bills were introduced in the Legislature this year to ban the death penalty. Both of them died without a hearing.

Perez’s attorneys, who no doubt had been optimistic (what with Democrats now firmly in power in Carson City) that the death penalty was likely to be repealed soon, were left to fall back on some fairly audacious creativity. Noting that both Democratic leaders were employees of the very same district attorney who was trying to kill their client, they argued that the decision to table the death penalty bills could only be the result of improper influence from executive branch officials into the legislative process.

The motion seeks to have the death penalty stricken, arguing that it only still exists in the law because Clark County D.A. Steve Wolfson improperly influenced his employees, Assembly Speaker Jason Frierson and Senate Majority Leader Nicole Cannizzaro, into using their legislative positions to kill a bill they otherwise would have supported. They also say the death penalty should be declared unconstitutional, because its continued existence is owed entirely to violations of the separation of powers principle.

While I admire audacious creativity in lawyers, the problem with the argument is that it relies entirely on the purely speculative assumption that the death penalty ban bills would have passed the Legislature had only they been brought to a vote. And that is an awfully big assumption to make – one that I can’t see any judge willing to grant without some evidence. And no matter how you feel about the death penalty, this is a good thing. The less judges are involved in questions of political judgment, the stronger and more credible the judiciary as an institution will remain.    

But what if (you may ask) Perez’s lawyers do find and present proof that Wolfson was directing Frierson and Cannizzaro to abuse their power and kill a popular bill? (I find this almost impossible to believe. I’ve never met Cannizzaro, but I know Frierson well enough to be reasonably confident he’d tell his boss to pound sand rather than meekly follow super-secret orders to do something he thought was wrong.)

But what if such evidence is found? What if the Perez motion is granted? The fallout would drastically alter the makeup of the Legislature and call into constitutional question an enormous stack of laws duly passed, or apparently not amended often enough.

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Most defense attorneys I know are politically on the left, but when it comes to constitutional law, they might as well be leading public protests wearing tri-cornered hats bedecked with tea bags. It makes sense – there is no more raw exercise of government power than to literally grab a person and put him in a cage, and while most police and prosecutors are honorable people working hard to seek justice, every defense attorney has seen that power abused more than once. (Why that same righteous skepticism of government power doesn’t translate to skepticism about massive government-driven social engineering projects so en vogue among “progressives” these days, I’ll never know)

The Perez case’s constitutional separation of powers argument is more potent than in two previous attempts by the right-leaning Nevada Policy Research Institute to get the Nevada Supreme Court to declare that public employees of any kind can’t be legislators. NPRI filed two lawsuits, one against Sen. Mo Denis, who resigned his government job before the Supreme Court could make a decision on whether that situation violated the separation of powers, and another against Sen. Heidi Gansert, who works for the University of Nevada, Reno.

NPRI lost the suit against Gansert initially. It then appealed it to the Supreme Court. Strangely, though, the appeal was quietly withdrawn, closing the case once again without any clear legal guidance from the Supreme Court on just what the state constitution means when it says in Article 3, “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[.]”  

Gansert and Denis both argued at the time of the lawsuits that merely working for an executive branch agency does not mean one is “charged with the exercise of power” of that branch. But prosecutors — particularly prosecutors with supervisory authority over other prosecutors, such as Frierson and Cannizzaro — will have a harder time making that claim. And while a think tank/political advocacy organization can simply drop its own lawsuit because the actual harm to their named plaintiff is somewhat esoteric, Perez’s attorneys have no choice but to follow this same argument through to the end.

If they prevail, the results could go far beyond a single death penalty case, or even the death penalty generally. It would force the Supreme Court to define who is exercising executive power in their government jobs and who isn’t. If the court defines it broadly, the ironies would be significant. For instance, Sen. James Ohernshall, who brought one of the death penalty repeal bills in the first place, works for the government as a public defender for Clark County.

More crucially, if prosecutors are indeed prohibited from legislating on matters of criminal law, could and would Perez’s attorneys argue that any change to our criminal code, even the massive defendant-friendly criminal justice reform bills working their way through the process, would be equally invalid?

Depending on how the Supreme Court rules, it could implicate legislators who work in the private sector, too, based on conflict of interest rules. What legislator doesn’t vote on a bill at some point that stands to help his or her employer, however remotely? That’s the inevitable consequence of a part-time citizen legislature and always has been.

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Ultimately, I don’t think that Perez’s motion will prevail. The cans of worms that would be opened would call into question the constitutional validity of… the entire structure and operation of the legislature. And it asks the court to make a purely political judgment about the death penalty specifically and the legislative process generally, something I don’t believe any court would – or should – do. I’d like to see the death penalty repealed, too, but it is a political question, not a legal one.

The issues raised should resonate with us all. Why is it that a single legislator can summarily kill another legislator’s bill without a vote, or so much as a hearing?  Is that really the most (small D) democratic or (small R) republican way to make our laws? Should partisan affiliation matter as much as it does in how (or even if!) bills are introduced or voted upon?

And while I wouldn’t want to see the Legislature in session any more often or any longer than it already is, there is an argument for making legislators full-time state employees so they don’t have to please their bosses (or be tempted by other corruptions) the rest of the year.

Instead of lawsuits by groups such as NPRI who believe that the principle of separation of powers should be observed in more absolute terms, perhaps constitutional amendments specifically prohibiting public employees from serving in the Legislature could be sought via popular vote. Let the people decide the cost/benefit question of the potential conflicts versus the experience and knowledge of how the government works in practice that those legislators bring.

Political problems require political solutions. With every effort, be it from the left or the right, to ask judges to do the work our elected legislators should be doing instead, the power of a free citizenry is diminished. We would all do well to pay more attention to these fundamental questions as opposed to engaging in the partisan tribalism that rules our discourse these days — and cast our votes accordingly.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected].