Amicus Nevada

Rehearing denied in mayoral term limits case

In a short one-sentence order, the Nevada Supreme Court today denied a petition for rehearing of its decision in the Reno term limits case. With this order, Jessica Sferrazza’s and Dwight Dortch’s aspirations end to be Reno’s next mayor. Justices Saitta and Parraguirre dissented from the denial of rehearing.

Although rehearing petitions are normally the equivalent of throwing a Hail Mary pass in the final seconds of a game, I argued that this petition had merit. It’s a little unsettling that the Court decided to give no attention to its precedents stating that where a legal provision that limits a candidate’s eligibility for office is ambiguous, it must be construed liberally in favor of the candidate’s right to run.

While disappointing that the Court didn’t explicate its reasoning here, it’s hardly surprising as a matter of judicial politics. The desire to achieve finality may have outweighed any interest among the justices to directly confront the issue. Ironically, it may have been Sferrazza’s failure to brief the issue in more detail earlier in the case that ultimately did her in. She dedicated only a few sentences and a footnote to the issue in her answer.

Implicitly, the decision in Lorton v. Jones may now signal the presumption of eligibility is a dead letter when it comes to local offices, but I suspect we may see some attempts at future litigation of this issue specifically. When confronted specifically with the issue in more than a footnote, courts may have a hard time reconciling the presumption against the Court’s decision in Lorton.

The Court’s refusal to rehear the case also means that some mayoral incumbents might be facing challenges to their continuation in office, such as Henderson Mayor Andy Hafen.


Interpretative pretzel: city term limits case twists and turns

Two weeks ago, the Nevada Supreme Court ruled that the term limits provision of Article 15, Section 3(2) of the Nevada Constitution bars a person from running for the office of mayor where the mayor is a member of the local governing body and the person running has already served 12 years on the local governing body. The ink was hardly dry on the opinion before columnist Steve Sebelius argued that the Court wrongly decided the case, both in his regular Review-Journal column and on his blog.

Not long after, Jessica Sferrazza, a would-be candidate for the mayor of Reno and a real party in interest in the case, filed a petition for rehearing. Dwight Dortch, the other real party in interest in the case, who also seeks to be Reno’s next mayor, joined in Sferrazza’s petition. In her petition, Sferrazza argues that the Nevada Supreme Court overlooked applicable precedent that requires ambiguous provisions of law that limit eligibility for office be construed in favor of a candidate’s eligibility for office. Under those precedents, Sferrazza argued, the Court must reverse course and decide in her favor.

Petitions for rehearing are usually a long shot. Petitioners areessentially trying to convince the court that just ruled against them to change its mind–not an easy task. Here however, as a sign that there might be something to Sferrazza’s petition, the Court directed the the opposing party to file an answer. Lorton filed his answer  and yesterday Sferrazza filed a reply.

In his answer, Lorton does his best to argue that Sferrazza fails to meet her heavy burden to invoke rehearing. That standard is set out in Rule 40 of the Nevada Rules of Appellate Procedure. Basically, in order to be successful on a rehearing petition, the petitioner must show (1) the Court overlooked or misapprehended a material fact or a material question of law in the case or the Court has overlooked, misapplied or (2) failed to consider a statute, procedural rule, regulation or decision directly controlling a dispositive issue in the case. Here, Sferrazza argues that the Court overlooked or misapplied a line of cases that provides when a law that limits a person’s eligibility for public office is ambiguous, the court must choose the interpretation that favors the candidate’s eligibility for office.

I wrote two weeks ago that I believed the Court’s decision was correct. However, I did not seriously take into consideration the case law that recognizes and applies a presumption that requires courts to construe ambiguous eligibility-limiting provisions in favor of a candidate’s eligibility (mostly because I didn’t view the provision to be ambiguous). But now with the Court saying the provision is ambiguous and after reviewing that case law, I think the Court might find itself in quite a predicament.

When ambiguous, let the candidate run

Nevada courts have recognized since at least 1937 a canon of construction that requires a liberal construction in favor of candidate eligibility of provisions that purport to restrict candidate eligibility for office. This principle was first recognized in State ex rel. Schur v. Payne, 57 Nev. 286, 63 P.2d 921 (1937), where the Court, in deciding upon a voter eligibility provision, announced “the right of the people to select from citizens and qualified electors whomsoever they please to fill an elective office is not to be circumscribed except by legal provisions clearly limiting the right.”

The rule has been consistently applied and upheld since then in cases where laws that limit a candidate’s eligibility to run were at issue, most recently and directly in 1994 in State of Nevada Emps. Ass’n, Inc. v. Lau, 110 Nev. 715, 877 P.2d 531 (1994). Since then, the rule has been cited in several cases–whether it was directly at issue or not–in Nevada Judges Ass’n v. Lau, 112 Nev. 51, 910 P.2d 898 (1996) (deciding constitutional attack on term limits initiative petition); Miller v. Burk, 124 Nev. 579, 188 P.3d 1112 (2008) (deciding when 12-year term limit clock began running for candidates); and In re Candelaria, 126 Nev. ___, 245 P.3d 518 (2010) (deciding whether eligibility provision for justice of the peace precluded a candidacy). The Nevada Supreme Court has written nothing to clearly suggest the rule is no longer good law.

My view on this case is this presumption is pretty ironclad. If a court finds ambiguous a legal provision that purports to limit a candidate’s eligibility for office–meaning there are two reasonable interpretations, one where the candidate is eligible and the other ineligible–the court must choose the interpretation that favors candidate eligibility. Applied to this case, the presumption creates quite a problem for the Nevada Supreme Court, in light of its 5-2 decision in Lorton two weeks ago.

Twisted and contorted

In Lorton, a 5-2 majority of the Court found the term limits provision at issue was ambiguous. Slip op. at 9-12. But under the presumption in favor of eligibility for office, the Court’s analysis should have ended there, ruling in Sferrazza’s favor. Instead, the Court went on to discuss legislative history and other extra-textual sources to find the intent of the drafters of the term limits provision. Id., slip op. at 12-18.  The Court cited to the case law where the presumption was discussed, but didn’t expressly or implicitly refer to it. On rehearing, the path the Court followed in this case might come back to haunt the five justices in the majority.

Unless the Court can come up with some clever way to distinguish its precedents, it seems the Court would be bound by stare decisis and the rule of law to overrule itself and to rule in Sferrazza’s favor. This, of course, makes it look as if the Court rushed to judgment, which it may have given the opinion was issued only one month after briefing and oral argument were completed. Lorton, to his credit, attempts to distinguish the facts and law in this case, but I think his arguments are weak. I see no reasoned or principled way to distinguish the cases, if you accept that the term limits provision here is ambiguous. Prior cases have applied the presumption when interpreting other term limits provisions in the Nevada Constitution, and it seems to me no reason why the rule should not apply here.

Of course, backed into a corner, it’s possible the Court might do something even more outrageous, like rule that the term limits provision really isn’t ambiguous, and then still rule against Sferrazza. Remember, the presumption only applies if the provision is ambiguous. But this would result in an about-face that is even more shocking than reversing course because the result must change when applying prior decisions that were overlooked.

One final out for the Court might be to find the provision ambiguous but refuse to apply the presumption because doing so would result in absurd outcomes, thus salvaging the prior ambiguity finding and the end result. This will be quite an act of legal contortion if the Court can pull it off.

I don’t believe the provision can be read ambiguously, but a unanimous Court appeared to determine otherwise; the two  dissenting justices simply came down on the other side of the interpretation divide. The provision is a specimen of poor drafting, to be sure, but a prohibition on being “elected to any state  office or local governing body [if he or she] has served in that office . . . 12 years or more” isn’t ambiguous to me, no matter what you read “in that office” to modify. The term “local governing body” is not an office, to be sure, but it’s rather best understood as a term of art designed to encompass whatever titles of office a local governing body might employ to designate the members of the local governing body. “Local governing body” is a term that encompasses not only city councils but county commissions, improvement district boards, school boards, etc. The history of the term limits provision makes clear why the drafters chose a term of art: it would have been much too cumbersome to list every possible office that was to be included. Justice Pickering’s concurrence I think handles this concept well, when she argues that in Reno the mayor is functionally identical to the other city council members when looking solely at what it means to be a member of the city council (or “local governing body” of Reno).

As I argued in my last post, finding for Sferrazza would essentially let cities play games with definitions, and that would certainly lead to absurd results. If so long as a local governing body is comprised of officers known by different titles and each office had some duties unique to the others, each office would be separate, and thus the 12-year limit would apply to each office separately. This would allow one person a potential 60 years on the same 5-member local governing body. By such reasoning, I would have found that while the term limits provision is capable of two plausible interpretations, the provision is not capable of being understood in two senses by reasonably informed persons, especially since one leads to absurd results, and thus the interpretations are not both reasonable.

Despite my views, the best option is probably for the Court to reverse course only on its holding and rule that because the provision is ambiguous, it must be construed in favor of Sferrazza’s candidacy. Should the voters decide to draft a clearer term limits provision, they will be free to do so. That way the voters can squarely debate whether it matters that the mayor and city council member in some cities are technically different offices or whether it matters only that a person not spend more than 12 years as a member of the same local governing body, no matter the capacity or office the person otherwise holds. It’s entirely possible the drafters never considered that cities throughout the state have different charter provisions regarding a mayor’s status as a full council member. 

It’s also possible the drafters didn’t think the distinction mattered. As it stands now, the term limits provisions of the Nevada Constitution do not expressly prevent persons from serving in local offices (other than on the local governing body) for more than 12 years. That means mayor, city attorney, sheriff, city attorney, or any other elected local officer is not subject to term limits. That seems inconsistent with the state constitution’s imposition of term limits on state executive officers. Thus, if the the voters are dissatisfied with the Court’s judgment, they should squarely address it by proposing amendments to the term limits provision.

Personally, I find term limits antithetical to representative democracy. I subscribe to the late Sen. Bill Raggio’s school of thought on term limits: we already had term limits–they’re called elections (leaving unanswered for now whether our electoral system creates a level playing field for all candidates).

Those of us who love to follow these kinds of cases, where politics intersects with the law and the constitution, will be waiting anxiously for a final ruling from the Court. Under NRAP 40, the Court can decide without further argument or briefing or can essentially restore the case to its status before argument and allow additional briefing and argument. Given that the candidate filing period is already open and closes on March 14, I doubt the Court will choose a path that will cause much more delay. Imagine the mess if a final decision doesn’t come down until after filing closes.

Nevada Supreme Court deals blow to mayoral candidates

Henderson mayor potentially in jeopardy

Well, when I started this blog back in February 2013, I warned that posts would be infrequent, and it was possible I’d mothball the blog. Well, something of note happened today warranting taking the blog out of mothballs and the first post since June 2013.

Today, the Nevada Supreme Court, in a 5-2 decision authored by Justice Hardesty, ruled a constitutional provision imposing a 12-year term limit on members of a “local governing body” applies to the office of mayor where the city charter makes the mayor a member of the city council. The case is Lorton v. Jones, 130 Nev. Adv. Op. No. 8 (Feb. 20, 2014). Immediately, this means the candidacies of Dwight Dortch and Jessica Sferrazza to be Reno’s mayor are now kaput because the two of them have previously served 12 years on the city council. The ruling might also provide a sword to challenge the continued incumbency of Henderson Mayor Andy Hafen, who was recently re-elected but under the Court’s ruling may now be ineligible to hold office.

Article 15, Section 3(2) of the Nevada Constitution states “No person may be elected to any state office or local governing body who has served in that office, or at the expiration of his current term if he is so serving will have served, 12 years or more.” The Court determined that because the Reno City Charter makes the mayor of Reno a member of Reno’s local governing body (the city council), the Article 15, Section 3(2) bars a term-limited council member from thereafter being elected mayor.

In reaching its conclusion, the Court determined that Article 15, Section 3(2) is ambiguous when it refers to “that office” in relation to “state office” and “local governing body.” Id., slip op. at 9-12. Because the provision is ambiguous, the Court could resort to extrinsic aids, such as context, the purpose and public policy underlying the constitutional provision, the history of the initiative that created the constitutional provision, and related constitutional and charter provisions, to help interpret it. Id., slip op. at 12-18.

Opponents and the dissent argued that the office of mayor is sufficiently distinct from a council member to be a separate office from that of member of a local governing body. The Court disagreed, finding the Reno mayor even with some differing responsibilities is not “divest[ed] . . . of his or her full and equal membership on the city council.” Id. at 17.

Justice Pickering, concurring in the majority opinion, wrote separately primarily to respond to the dissent. She argued that the dissent overly relied on dictionary definitions of “office” and “local governing body” and did not “adequately consider the meaning these words have in the context of Article 15, Section 3.” Id. (Pickering, J., concurring, at 1).

The dissent, written by Justice Saitta and joined by Justice Parraguirre, focused entirely on dictionary definitions of “office” and “local governing body,” and found that the mayor of Reno is a different office from member of the local governing body. Because of that, the dissent argues the term limits provision does not apply to the mayor because the “mayor is elected to the office of mayor, not to the office of city council member.” Id. (Saitta, J., dissenting, at 3). The dissent argues the “that office” language makes the term limits provision office-based, rather than body-based, as the majority holds.

I think the Court’s result is correct and does the least violence to the spirit of the term limits provision. If the dissent carried the day, cities could play too many definitional games to evade the term limits provision. Imagine a city charter that comprises its 5-member city council with “ministers,” each of whom have administrative or executive authority over some area of city government, such as minister of parks and recreation, minister of public works, minister of public safety, etc. Each member would have duties and responsibilities unique from every other member of the city council, thus making each minister position a separate “office.” Under the dissent’s reasoning, a person could conceivably serve 60 years on the council simply by swapping to a different “office” every 12 years, effectively evading the “local governing body” language.

The majority opinion is appealing for another reason: cities that have defined their mayors as a member of the city council can simply amend their charters to remove the mayor as a member of the council, like is the case in Sparks, as the majority opinion noted. Id., slip op. at 18; Sparks City Charter, Art. III, § 3.010(1)(b). I don’t think cities would have to go so far as Sparks has and abandon the mayor-manager system of city governance in favor of mayor as chief executive. It should suffice to relegate mayors to much the same role the lieutenant governor has in the state senate. The lieutenant governor presides over the Nevada Senate and he is allowed a casting vote (a vote when the Senators are tied), but he is not a member of the Senate. Nev. Const. art. 5, § 17. So long as the mayor is deprived of all other legislative powers (the ability to introduce bills, to debate, and to vote on all questions before the council), I think this would make the mayor sufficiently different from a council member to no longer be considered a member of the local governing body for term limits purposes. I expect we’ll see some bills in the 2015 legislative session to do just that, and maybe (we can dream) a special session to try to fix this issue before the 2014 elections.

The constitutional term limits provision is, admittedly, not a model of clear drafting. The Court’s opinion does not avoid that finding and deals with interpreting and construing the provision in a reasonable fashion, and I think the majority has arrived at the most reasonable and desirable outcome in this case.

Imprecision is a byproduct of constitutional amendments by initiative. Legislation by initiative is, in my view, more susceptible of leading to inconsistent, confusing results than is legislation by an elected legislature. An irony of this case is other than for members of a local governing body, local officers (e.g., a mayor who is not a member of the local governing body, an elected city attorney, an elected city clerk, etc.) are not subject to any term limits provisions in the Nevada Constitution. So the Sparks mayor, for example, could hold office for as long as the voters will re-elect the mayor. Is this the result the drafters of the 1994 and 1996 term limits initiative intended? Perhaps. Perhaps not.

What about mayors who have been elected but were already term-limited?

The Court’s opinion today leaves unresolved what to do with mayors who already served 12 years as a council member but were nonetheless elected mayor. This specifically affects Henderson Mayor Andy Hafen, who had already served 12 years on the Henderson City Council when he was elected mayor. He was recently re-elected in 2013. Henderson’s Charter makes the mayor a member of the city council, just like in Reno. Arguably, Hafen was never eligible to be elected because Article 15, Section 3(2) of the Nevada Constitution barred his election.

To challenge the eligibility of an incumbent public officer to hold office, a person would file a complaint for a writ of quo warranto. Chapter 35 of the Nevada Revised Statutes governs these actions. I’ve written about quo warranto actions before, in the context of a case brought by NPRI to prevent State Senator Mo Denis from serving both in the legislature and holding a job in the executive branch. (Thanks to @TKTaycher for reminding me about my post.)  That case is still on appeal to the Nevada Supreme Court, awaiting a decision of whether the Court has jurisdiction to consider the appeal when Sen. Denis left the executive branch job, thus possibly making the appeal moot.

If a writ of quo warranto was sought against a mayor who was already term limited when elected as mayor, I think it’s possible such a petition would be successful. The problem, however, might be finding a plaintiff who has standing. NRS 35.030 confers standing on the Attorney General to bring such an action. But if the Attorney General declines, you’d have to find a private plaintiff with standing. A private plaintiff, such as a Henderson resident or taxpayer, would not have standing. To have standing, one would have to fairly claim an entitlement to the office over a term-limited mayor, and such a person might not exist because the mayor presumably won election, and by definition two people cannot win the same election.

Although the Court’s decision today instantly blew wide open the race for mayor of Reno, its effects on other term-limited mayors may be limited until the next election. It’s possible the courts would not apply the Lorton decision retrospectively. Generally, though, a court decision is merely deciding the state of the law as it existed when the law in question was adopted. But the retrospective or prospective application of judicial opinions is a complex area of law that could affect all of this. Regardless, it will be worth watching whether anyone tries a quo warranto action to oust term-limited mayors. If someone does, you’ll read about it here, unless I put the blog back into mothballs for several months again.

Filibusters in Nevada

Riley Snyder has a brief blog post looking at whether a determined member of the Nevada Legislature could mount a filibuster like the one that recently took place in the Texas Senate. Secretary of the Nevada Senate David Byerman, who also acts as that chamber’s parliamentarian, says no. The rules cited, however, plainly demonstrate this is an incorrect reading of parliamentary law.

Byerman apparently reads Senate Rules 80 and 81 as creating a mechanism that can cut off a filibuster. But that’s not what those rules say; not even close.

The Previous Question Motion

The rules do provide for the motion for the previous question. The effect of adopting a motion for the previous question is to bring all debate to an immediate end and to proceed to an immediate vote on the question under debate. In most parliamentary bodies (including deliberative assemblies under Robert’s Rules of Order), a single member can move the previous question, provided it is then seconded. Both the Nevada Senate and Assembly, however, require the motion be sustained by three members before the motion can be put. All that means is before a vote is taken on the motion for the previous question, three members must demand it. Think of it as a second, second, to a motion (i.e., “I move.” “I second.” “I second the second.”).

But properly moving the previous question does not in and of itself end debate. This is a common misconception among parliamentary novices. Demanding the previous question or shouting “I call the question” does not bring debate to a close. Only when the motion for the previous question is adopted by the requisite majority–a majority in both chambers of Nevada’s legislature, but a two-thirds majority under Robert’s (the idea being a bare majority should not be able to squelch debate from the minority)–is debate properly ended.

So now that we know what it takes to move and to adopt the motion for the previous question, we need to address a very important threshold point: when can the motion be made?

Byerman appears to suffer from the same misconception that the parliamentarians at Robert’s point out. A member cannot interrupt another member who has the floor. Indeed, interrupting another member who has the floor is generally a breach of decorum, unless the interruption is privileged under the rules. For instance, a point of order that the member cannot be heard would be a privileged interruption. Only once a member is properly recognized may that member then move the previous question. Mason’s Manual, the Robert’s for state legislatures, confirms this point. Section 61 states “A member once recognized and having the floor is entitled to freedom from interruptions unless something arises that requires immediate consideration. A member cannot be interrupted merely to make motions having a higher precedence than the one under discussion” (emphasis added). This is why the filibuster is so potent: there is no way to stop it so long as the filibustering member holds the floor.

Comparing parliamentary bodies a bit, the reason the filibuster is not possible in the U.S. House is because almost all measures that make their way to the floor are considered under a “rule,” which is a resolution adopted to govern debate on a measure. These “rules” provide for time limits on debate. Once time is expired, debate ends and the previous question is automatically ordered. The same limitations could be imposed in the Nevada Legislature by motion. But again, the motion must be made by a member who properly obtains the floor.

“Order of Business 15 (or 16)”

One last quirk of Nevada legislative procedure which may affect my analysis, but I’ve never understood why, is the Assembly’s “Order of Business 15” and the Senate’s “Order of Business 16.” (Assembly Rule 120 and Senate Rule 120). Those orders of business each provide for “Remarks from the Floor” and limit those remarks to 10 minutes. This has driven me nuts for as long as I have observed the Nevada Legislature, but if you listen carefully, you will often hear debate on a bill’s third reading open with the manager of the bill reading the bill’s floor statement and then asking for “Order of Business 15/16.” Then the member continues debate, but this time not from the staff-prepared, neutrally-worded floor statement. The debate at this point usually takes a more impassioned tone. It sounds like actual debate, rather than just mechanically listing the bill’s provisions.

Why they do this, I don’t know, other than to say it’s a tradition that never should have been started. When a question is under consideration, debate on its merits is always in order, unless the motion being debate is not debatable under the rules or parliamentary procedure in effect (the motion for the previous question itself is not debatable). Changing the order of business, from a strictly parliamentary standpoint, would mean moving away from the question under consideration. An order of business is designed to organize classes of business, not to corral debate. This is why Nevada’s tradition seems incorrect (just as is its insistence on calling the building where the legislature meets something other than the capitol, but I’ll leave that touchy subject for another day).

The reason these provisions might affect my analysis is because the provisions seem to imply automatic 10-minute time limits on a member’s debate when the member asks for “Order of Business 15/16.” This tradition, as far as I can tell, has no basis in the Rules of the Assembly or the Senate, nor in parliamentary law, and indeed seems plainly contrary to Senate Rule 80, which is headed “Debate” (“Every Senator who speaks . . . shall confine himself or herself to the question before the Senate.”) Order of Business 16 is not a question; it’s just an order of business.

In sum, were I in a position to give parliamentary advice to the members of the Nevada Legislature, I would allow the filibuster to run its course. And now that my Friday night rant is complete, I can go back to complaining about Vegas’ “heat storm.”

‘Extraordinary’ means what the Governor says it means

Today political commentator Jon Ralston posted on his website that the 27th Special Session, convened the day after the 77th Regular Session failed to complete all of its business within the constitutionally mandated 120-day limit, “was not an extraordinary event, by any definition.” Ralston argues the business for which Governor Brian Sandoval convened the special session was not important enough to constitute an “extraordinary occasion[]” that the Nevada Constitution requires before a special session may be convened. Luckily for everyone’s sanity, this is a point of law that the Nevada Supreme Court squarely rejected in 1940. I can spare my readers the trouble of reading Ralston’s rant, quoting his first sentence: “Just a thought, not that anyone would ever raise the issue in court.” But for the die-hards and masochists among my readers, and as I’ll explain below, there is no threat of having to go back to Carson City; the Supreme Court will not invalidate the 27th Special Session.

The Nevada Constitution, in both Article 4, Section 2A, and in Article 5, Section 9, states that the Legislature may be convened in special session “on extraordinary occasions.” The term “extraordinary occasions” is not defined. No matter, because the Nevada Supreme Court, in In re Platz, 60 Nev. 296, 108 P.2d 858 (1940), has held that the determination of what circumstances constitute an extraordinary occasion warranting urgent legislative action outside of a regular session is a determination to be made by the Governor. In considering a challenge to a law* enacted at a special session because it was “not of an urgent nature and of such a type as to admit of no delay,” the Court wrote

As to the urgency of the legislation, we think it was to be determined solely by the governor. The section of the constitution invests him with extraordinary powers. He is invested exclusively with the power to determine what occasion shall warrant the convening of the legislature in special session and to designate what subject of legislative business shall be transacted thereat. In re Governor’s Proclamation, 19 Colo. 333, 35 P. 530. The language “such other legislative business as the governor may call to the attention of the legislature” is not susceptible of a construction that would negate these powers.

*Ironically enough, the law challenged was the State Bar Act. After a lawyer was disciplined and suspended from the practice of law, the lawyer challenged the Act on numerous grounds, including that it was not enacted at a properly-called special session.

The Nevada Attorney General cited to Printz in confirming the view that only the Governor gets to decide whether an extraordinary occasion exists warranting the call of a special session. Op. Nev. Att’y Gen. 2001-14 (June 12, 2001). Mason’s Manual of Legislative Procedure at section 780(10) notes that “neither the legislature nor the judicial department has any power to call the governor to account” over the calling of a special session, citing to judicial decisions from Georgia, Kansas, and Nebraska, well-known bastions of radical liberal ideology.†

I understand Ralston’s point is less about the law and more about the moral propriety of calling a special session when there is no real urgent situation needing immediate attention. But if there is moral or political outrage to be expressed, it’s over the 120-day limit, biennial sessions, and term limits, not what the meaning of “extraordinary” is. Perhaps Ralston is just having Carson City withdrawals.

†That’s sarcasm, in case it wasn’t conveyed across the interwebs.

So who had ‘ends in a casting vote showdown’?

Developing news out of Carson City with only three days to go in this legislative session. The Nevada Legislature could find itself in another history-making situation, but this time it will be the state Senate making history.

The Las Vegas Sun’s Anjeneatte Damon reports that Sen. Joyce Woodhouse’s gravely ill husband has necessitated her return to Las Vegas, putting the Nevada Senate in a potential 10-10 voting deadlock, with the Democrats only barely having control of the chamber with all members present. Why is this an issue? Because the Lieutenant Governor, Brian Krolicki, who is also President of the Senate, is constitutionally empowered to give a “casting vote” when the Senate is equally divided.

This has whipped up reporters, pundits, lobbyists, and others in a panicked frenzy about whether Republicans could start passing bills that the Democrats don’t really want passed. It has the makings, in the final moments of a session, of another Nevada Mining Association v. Erdoes mess that wasn’t resolved until the Nevada Supreme Court stepped in.

Casting vote vs. majority of members elected

Two potentially conflicting constitutional provisions are on point. First, Article 4, Section 18, of the Nevada Constitution states, with the exception of revenue generating bills (which require two-thirds votes), “a majority of all the members elected to each House is necessary to pass every bill or joint resolution.” With 21 Senators elected to the Senate, 11 is a majority of all members elected. With Sen. Woodhouse absent, only 20 senators will be voting, setting up a potential 10-10 tie. Enter the second provision. Article 5, Section 17, states “[The Lieutenant Governor] shall be President of the Senate, but shall only have a casting vote therein.”

A “casting vote” in parliamentary law is recognized as “[a] deciding vote cast by the chair of a deliberative assembly when the votes are tied.” Black’s Law Dictionary 1711 (9th ed. 2009); see also Mason’s Manual of Legislative Procedure § 513 (2010 ed.). The Vice President of the United States and President of the Senate is said to have a casting vote. “[T]hat to secure at all times the possibility of a definite resolution of the body, it is necessary that the President [of the Senate] should have only a casting vote.” The Federalist No. 68 (Alexander Hamilton).

Notably, the U.S. Constitution does not have language similar to Nevada’s Article 4, Section 18, requirement that bills pass with a majority of all members elected. The Lieutenant Governor is not a Senator, but he is allowed a casting vote. The question becomes, in light of the requirement that bills pass with a majority of all elected to the Senate, may the President of the Senate cast a deciding vote if the Senators are equally divided 10-10?

Unsurprisingly, there is no case law on point in Nevada. In a quick search, there also appears nothing on point from the Nevada Constitutional Debates. The operative constitutional language has existed since the Nevada Constitution was ratified in 1864.

There is a Nevada Senate rule on point, which complicates matters. Rule No. 31 of the Senate Standing Rules provides “A question is lost by a tie vote, but when the Senate is equally divided on any question except the passage of a bill or joint resolution, the President may give the deciding vote.” Thus, the Senate recognizes that the President of the Senate is empowered with some casting vote, but expressly deprives the vote on final passage of a bill or joint resolution. The problem is the Senate Rule might be contrary to the Nevada Constitution, and thus is unconstitutional and must yield to the President of the Senate’s power to give casting votes.

Casting vote wins

Other jurisdictions that have considered this issue have found, even when constitutional language requires a majority of the elected members for a bill to pass, a Lieutenant Governor giving a casting vote, even on final passage, is a proper and legitimate use of the power. In State ex rel. Easbey v. Highway Patrol Board, 372 P.2d 930 (Mont. 1962), the Montana Supreme Court ruled that a bill that was passed with the Lieutenant Governor’s casting vote was valid. There, the Court ruled that when a casting vote is exercised, “It produces ‘a vote of a majority of all the members’ present in the Senate and voting upon the proposition submitted.” Id. at 939. Of note, however, in that case, both the Montana Constitution and the Montana Senate’s rules allowed for a casting vote in all cases. In Nevada, there is the added wrinkle of the Senate Rules and Nevada Constitution perhaps being disharmonious on this point. Other jurisdictions have reached the same result. See Opinion of the Justices, 225 A.2d 481 (Del. 1966); Advisory Opinion on 1978 PA 426, 272 N.W.2d 495 (Pa. 1978).

Casting vote loses

However, other jurisdictions have reached contrary results. See, e.g.Center Bank v. Dept. of Finance and Banking, 313 N.W.2d 661 (Neb. 1981) (4-3 decision) (holding language requiring majority of all members controls over Lt. Gov.’s casting vote). The dissent in Center Bank noted that the language requiring a majority is simply an aid to determine how to count a majority (i.e., a simply majority, meaning a majority of the members present and voting, a quorum being present, or an absolute majority, meaning a majority of all members elected). “In my opinion, the provisions of article III, § 13, are intended only to aid in determining how the necessary majority is to be computed.” Id. at 665 (dissenting opinion). The Indiana Supreme Court simply refused to decide whether a casting vote was proper, citing to the enrolled bill doctrine, which prevents courts from looking behind the certifications of the officers and clerks of both houses that a bill was duly passed. See Walsh v. Sells, 192 N.E.2d 753 (Ind. 1963).

Thus, if this issue were to actually rear its ugly head, it would create quite a constitutional mess for the Nevada Supreme Court to decide.

An unlikely vote to be cast

But a lot of things have to line up for this issue to actually present itself. First, the Senate must be equally divided and one short of reaching a constitutional majority on final passage (10-10). That result is unlikely, except on the most contentious, politically-oriented bills. Second, 20 members must be present and voting. Democrats could stop this parliamentary maneuver by simply disappearing themselves, and thereby depriving the Republicans who are left of a quorum to do business. But at that point, the Republicans could move to compel the attendance of absent members and to arrest those who refuse to attend. So to prevent that unpleasantness, all Democrats would have to do is ensure enough of their members are present to achieve a quorum (only 11 Senators are needed for a quorum). If 11 Senators are present, 10 Republicans and 1 Democrat, the vote would be 10-1, and that is constitutionally insufficient to pass a bill, and it isn’t a tie that would allow Lt. Gov. Krolicki to cast a tie-breaking vote.

At that point, the showdown ends or Lt. Gov. Krolicki decides to escalate it by declaring that, when a bill is one vote short of reaching a majority and his vote can tip the scale, he gets to vote, which would create yet another constitutional question. And all of this happening in the final days, hours, or minutes of session surely would lead to much unpleasantness.

Final thoughts

Right before posting this, reporters and others on Twitter have picked up on the Constitution/Rules conflict I’ve discussed above.

And now it’s reported that Democrats and Republicans will play nicely until Sen. Woodhouse returns.

Which makes this post, like most others here, purely academic. But as with so many other provisions governing legislative procedure, the drafters of the Nevada Constitution sure have demonstrated their ability to create as much ambiguity as possible where there should be none.

Update: June 2, 2013

Political commentator Jon Ralston was able to unearth an e-mail from 2006 listing historic uses of the Lieutenant Governor’s casting vote. Being without my own set of journals from the Nevada Legislature, and mostly unwilling to waste hours at the Boyd Law Library, I’m immeasurably appreciative when stuff like this surfaces. Some interesting points, the Lieutenant Governor has given casting votes on final passage before, but only three times were they decisive. Once in 1915 and twice in 1977, the Lieutenant Governor cast a yea vote when the Senate was equally divided on final passage of bills, changing the result from the measures losing to the measures passing. The four nay votes, two each in 1979 and 1981, were purely symbolic because a 10-10 tie vote results in a measure being lost even without the casting vote against.

When the Legislative and Executive branches fight

The margin tax vs. mining tax debate was back in the news last week when, on Tuesday, the Governor, Secretary of State, and Attorney General weighed in on whether the Legislature may properly place a competing measure on the ballot to go up against the margin tax. As is almost always the case in Nevada politics, Jon Ralston had the scoop and the letters between the Governor’s and Secretary of State’s staffs. The letters essentially adopt my argument first published here that because the Legislature did not reject the margin tax initiative consistently with Article 19, Section 2(3), of the Nevada Constitution, the Legislature lacks authority to propose a competing measure to voters. This debate has centered on the meaning of one little word in that section of the Constitution: reject.

The Legislative Counsel previously weighed in that reject, as used in that section, must be read consistently with legislative practice, and any ambiguity in the meaning should be resolved in favor of the Legislature’s power to propose a competing measure. I was not convinced and I still remain dubious about that position, but I do recognize there is a reasonable argument in favor of both positions. But now that three constitutional officers have weighed in, there is a new Legislative Counsel memo that discusses this dispute in the context of the powers of the executive vis-a-vis the Legislature. In light of the continuing debate, I thought I’d add a few more thoughts to the mix.

First, though, I’ll note, politically, an alternative appears dead, at least as of April 4.

This debate is purely academic, unless Sen. Roberson can muster a majority of both houses to revive the issue. But even if the plan is dead politically, that won’t stop legislative and constitutional policy wonks from continuing to debate it. (more…)

Just result, but was the process just?

The vote has been taken, the deed has been done. Steven Brooks has become the first member in history to be expelled from a House of the Nevada Legislature. In light of his arrest that same day, it seems beyond debate that expulsion was the only just result for Brooks, for the Assembly, and for the constituents in District 17 who effectively had no representation throughout this affair. Brooks now faces four felony charges in California, along with the pending charges in Nevada. After hearing about the latest arrest, I seriously questioned whether I should write this post.

Yesterday afternoon, after watching “Lincoln” for a second time, I couldn’t disabuse myself of the notion that this post must be written. Hearing the resonant words of Thaddeus Stevens, as portrayed by Tommy Lee Jones, in his great speech on the House floor that the vote on the 13th Amendment was a vote for equality under the law, convinced me I had to write this post.

“Yet even you, Pendleton, who should have been gibbetted for treason long before today, even worthless unworthy you ought to be treated equally before the law!”

And that’s exactly the situation we have with the whole Brooks saga, isn’t it? No one reasonably doubts Brooks was no longer worthy of the office of Assemblyman, but did he receive equal treatment under the law? Did he receive the process that was due him under the law? More below the break.  (more…)

Updated with arrest news: Brooks expelled, writ petition dismissed

Not a very good day for Steven Brooks. Today, on a voice vote, the Nevada Assembly became the first House of the Nevada Legislature in history to expel a member from office. It required a two-thirds majority vote of all 42 members. This has been an arduous process for all involved–legislators, Brooks, his family, the media, and his constituents. I watched the floor session today. It was evident how heavily this has weighed on everyone. In my view, this is the proper result for a man who, by all public accounts, including accounts post-expulsion, needs serious help.

The Nevada Supreme Court also dismissed Brooks’ writ petition, previously blogged about here. As I noted, the petition was defective because Brooks and his attorney named the wrong respondent, the Legislature as a whole instead of just the Assembly. The en banc Court (the whole Court), in an unpublished order, unanimously agreed. Because Brooks has now been expelled, re-filing the writ to correct that deficiency would be futile because the case presented in the writ petition is now moot.

But is this saga over? Political commentators sure seem to agree it is. See this exchange I had with Steve Sebelius.

Respectfully, I have to disagree, but I’ll save that disagreement for another post. I will give a small preview, however. There is case law from another jurisdiction that held a statehouse must afford a member 14th Amendment due process before the member can be expelled. The case is compelling and startling in its parallels to what happened over the past couple of months.

Update: March 29, 2013, 7:46 a.m.

Looks like it was an even worse day than I knew. Local media is reporting that Steven Brooks was arrested last night after a high speed chase. News in Barstow, Calif., has the story. There is also apparently a video of the arrest and allegations Brooks threw a handgun from the vehicle during the chase.

Punctuates that the Assembly did the right thing by expelling him, and makes my future post about due process tone deaf. Will have to rethink it.

Open vs. closed: what the rules say

Late-breaking news tonight that the Assembly Select Committee on the Assembly (what a truly awful committee name), which has been looking into whether Assemblyman Steven Brooks should be allowed to continue to serve in office, will close significant portions of its meeting tomorrow night and, most importantly, will not release its special counsel’s investigative report. The Las Vegas Sun’s Anjeanette Damon broke the story via Twitter tonight.

We learned last week, when the Select Committee posted its agenda, that at least a portion of the meeting would be closed to the public. Some attention has been paid to the fact that the Nevada Constitution allows committees to hold closed meetings “to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.” Nev. Const. art. 4, § 15. Unfortunately, little attention has been paid to the Assembly’s Standing Rules.

This post will first discuss the origin of the constitutional language at issue. Then, it will turn to whether the Select Committee may close any portion of its hearing regarding Assemblyman Brooks. Finally, I will briefly discuss whether the Select Committee, the Assembly, or the LCB can withhold the independent special counsel’s report. In summary, there is a lack of clear authority for the Select Committee to close its meetings. That is a defect that is easily cured by the Assembly, simply by amending, suspending, or adopting new rules. Additionally, the investigative report is likely protected from compelled disclosure under the Public Records Act. (more…)


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