Given current events and politics in Nevada, nothing seems more appropriate to write about, given this blog’s focus, than the continuing saga underway in Carson City.
As has been reported widely elsewhere, often with daily (or more) updates, the drama and intrigue at the Nevada Legislature surrounding Assemblyman Steven Brooks continues to excite legislative junkies.
Back when the saga was initially unfolding, I wrote a brief note about the legal framework governing the Nevada Assembly’s options in proceeding against Assemblyman Brooks. Although the background facts in my brief note are considerably out of date (Assemblyman Brooks has now been arrested for a second time–the publicly reported facts develop literally day-by-day), and it turns out that expulsion proceedings aren’t quite as unprecedented as many Nevada legislative followers, scholars, and historians thought, the Assembly is moving forward with its investigation of Brooks, which could result in his expulsion from the Assembly, an act that is, to the best of anyone’s knowledge, unprecedented for either house of the Nevada Legislature.
However, in their haste to get an investigation of Brooks’ conduct and fitness to serve in the Assembly underway, made all the more urgent by Brooks’ latest arrest, Assembly leadership is in danger of failing to cross all the T’s, dot all the I’s, that Chair of the Select Committee and Majority Leader William Horne committed to doing last week, before the Select Committee was announced to take up the investigation of Brooks.
As of this writing, the Select Committee on the Assembly, a name that belies the committee’s true function, has adopted rules that give the committee and its chair extraordinary powers, including the power to ban a member subject to the committee’s investigations from the Legislative Building (Rule 3(3))–a power that reportedly has already been invoked to ban Assemblyman Brooks from the building. As of this morning, Assemblyman Brooks has been notified of his ban from the building by letter from Select Committee chairman Horne.
While most of the capitol press corps is caught up in the pure, unfolding drama of the situation–a legislator twice arrested, exhibiting erratic behavior, possibly mentally unwell; a legislative committee and its chair banning a fellow lawmaker from the building; and the specter of being the first Nevada legislature to expel a member casting a pall over all–almost no one has noticed that the rules of the select committee are highly questionable as both a matter of constitutional and parliamentary law.
As political commentator and Las Vegas Review-Journal columnist Steve Sebelius observed last night, the Select Committee’s rules “unceremoniously—and perhaps unconstitutionally—stripped [Assemblyman Brooks] of his powers.” Sebelius continued, asking, “[C]an the Assembly bar a duly elected member who has not been convicted of a crime from voting and exercising the powers of his office, without a two-thirds vote, while that member is under investigation?”
My answer is a resounding no. But Sebelius reaches his conclusion before examining logically prior questions, like whether the Select Committee has proper authority to act. I find there is some doubt whether the Select Committee has been properly constituted and whether it has authority to do anything at all, at least as presently constituted.
I’ll examine the Select Committee’s creation, its jurisdiction, its powers, the rules it has adopted, and whether due process is being afforded.
Does the Select Committee have proper authority?
It is entirely unclear the authority from which the Select Committee draws its power to conduct any proceedings whatsoever, at least as presently constituted. Before I proceed laying out these concerns, I want to make abundantly clear that I believe the Assembly has complete authority to conduct investigations into the conduct of its members, and to undertake whatever proceedings necessary to discipline its members for disorderly conduct. That constitutional power is not at all in doubt. But what is in doubt is the parliamentary process used in this case to undertake the investigation of Assemblyman Brooks. As with so much in the legislative world, oftentimes it’s not the substance of what is being done but rather the procedure used to do it.
The Select Committee does not have a clearly specified jurisdiction or charge (or task) from the Assembly. The only public action by the Assembly reported in its Journal regarding the Select Committee on the Assembly is the naming of members. A review of the Assembly Standing Rules shows no rule governs the creation of select committees. Rule 41 does provide that “all committees must be appointed by the Speaker, unless otherwise directed by the Assembly,” but the Rules are silent on what action creates a select committee. When no rule governs, the Assembly Rules dictate that the precedents, customs, and usages of the Assembly and Mason’s Manual of Legislative Procedure govern. (Rule 100). Mason’s Manual is to legislative bodies as Robert’s Rules is to most private associations. Mason’s Manual at section 600(1) reports that it is the modern parliamentary practice for the presiding officer to appointing standing and special committees. This comports nicely with Assembly Rule 41. However, Mason’s also instructs that “Special committees may be created by resolution or motion of the body or upon order by the presiding officer or other appointing authority. The resolution, motion or order creating a special committee shall specify the subject matter of the special committee….” The Assembly’s Journal for Feb. 7, 2013, reports no specific subject matter.
The closest precedent in recent practice I could find for the appointment of a select committee in the Assembly is the appointment of the select committee to consider Senate Bill 438 in the 1999 legislative session. In that case, the Assembly Journal reports that “Mr. Speaker announced the appointment of the Select Committee on Senate Bill No. 438,” and then the Journal reports the names of the members appointed. Senate Bill 438 was thereafter referred to that select committee. The subject matter is clearly stated, as the contents of Senate Bill 438 were clear, published, knowable, and verifiable.The method of appointment is exactly the same as with the Select Committee: appointment by the Speaker. But the critical difference between the 1999 precedent and the Select Committee is a subject matter is not specified for the Select Committee. Ideally, the Assembly would have considered a resolution or motion to expressly charge the Select Committee with investigating the conduct of Assemblyman Brooks and his fitness to remain a member of the Assembly. But absent even a minimally specific direction, the Select Committee appears to be acting without a charge.
Moreover, two other committees might already have jurisdiction over the investigation of Assemblyman Brooks under the Assembly’s Standing Rules. First, Rule 44 states “The Committee on Legislative Operations and Elections has jurisdiction over matters relating to personnel,” but it’s unclear whether this jurisdiction refers only to the employees of the Assembly. Second, Rule 23, which creates the Committee on Ethics, provides that the Ethics Committee may “(a) May hear requests brought by members of the Assembly for advice on specific questions of potential breaches of ethics and conflicts of interest; and (b) Shall hear complaints brought by members of the Assembly and others on specific questions of alleged breaches of ethics and conflicts of interest.” Although the Select Committee is investigating Brooks’ conduct and fitness to remain in office, it’s unclear whether legislative ethics are implicated. Despite possible concurrent jurisdiction with already-existing committees, the Assembly certainly has the power to direct a matter to a select committee instead of the standing committee with jurisdiction.
Upon quick review of the letter delivered to Assemblyman Brooks this morning, the jurisdictional authority of the Select Committee is even more unclear. The letter states the conduct subject to investigation includes “failure to carry out certain responsibilities as an Assemblyman, engaging in unethical conduct and engaging in certain other deleterious conduct” (emphasis added). Wouldn’t ethical conduct be within the jurisdiction of the Committee on Ethics pursuant to Assembly Rule 23?
What is the Select Committee’s Jurisdiction?
The Select Committee’s lack of a clear jurisdictional statement or charge is made even more perplexing when compared against two provisions of the Select Committee’s rules. First, Rule 1 of the Select Committee’s rules states that the purpose of the rules is to “provid[e] for the operation of the Committee in a manner which will enable the Committee to perform properly the powers and duties vested in the Committee under Article 4, Section 6 of the Nevada Constitution.” The problem with this statement is it entirely misstates article 4, section 6 of the Nevada Constitution, which provides “Each House shall judge of the qualifications, elections and returns of its own members, choose its own officers (except the President of the Senate), determine the rules of its proceedings and may punish its members for disorderly conduct, and with the concurrence of two thirds of all the members elected, expel a member.” Not a word about powers being vested in a committee. The power to discipline is vested in “[e]ach House.” Second, Rule 3(4) provides for the appointment of a special independent counsel, who will have the duty to “conduct a preliminary investigation of complaints received to determine whether the Committee has jurisdiction over the matter and whether there is sufficient information to cause the Committee to conduct a full investigation of the matter” (emphasis added). How can the special independent counsel determine the whether something is within the jurisdiction of the Select Committee when the Select Committee has no clear jurisdiction? Mason’s sets this principle out in clearer terms: “The group must have the authority to take the actions it purports to take. Jurisdiction must be given; it cannot be assumed. Groups sometimes assume powers they do not have.” (Mason’s p. 2).
May the Select Committee adopt rules?
Another concern is whether the Select Committee has the authority to adopt separate rules, never mind the concerns about the substance of those rules. This answer is much more clear that some of my other concerns: Assembly Rule 41(3) provides ” All committees will operate under the rules set forth herein and other uniform committee rules as determined by the Speaker and published on the Nevada Legislature’s website. Each standing committee may adopt and file with the Chief Clerk’s Office policies consistent with these rules.” This rule is perfectly clear: a committee cannot adopt rules that are inconsistent with the Assembly Standing Rules and that are not uniform with the rules of other committees. Further, the Rule expressly provides that all committees only have authority to “adopt … policies consistent with” the rules in the Standing Rules.
On the basis if this rules provision alone, the Select Committee’s adoption of its own rules appears to be an ultra vires act, plainly contrary to the established Assembly Standing Rules.
May the Select Committee Adopt the Rules It Did?
Even assuming the Select Committee has the authority to adopt its own rules, many of the rules, including the rule granting its chair the power to ban members who are under the committee’s investigation from the Legislative Building, which I question below, are not founded on proper parliamentary authority. Additionally, a rule barring a member from the Legislative Building, could run afoul of explicit constitutional language requiring the legislature’s proceedings to be in public.
“The doors … shall be kept open”
Ignoring for a moment that a duly elected assemblyman is involved, a legislative order, deriving its power from a legislative rule, that allows one legislator to bar another from entry into the Legislative Building, surely violates article 4, section 15, of the Nevada Constitution. That section provides that “The doors of each House shall be kept open during its session” and “[t]he meetings of all legislative committees must be open to the public,” except in an extremely limited circumstance. The intent of this section is clear: the public is guaranteed the right to attend the sessions of the legislature and its committees and to freely observe the business conducted there. On its face, it seems extremely dubious than any order prohibiting a person from entering the public spaces in the Legislative Building can withstand this initial constitutional hurdle, at least without a specific showing of extraordinary need, like in the case of temporary protective orders. Although some individuals who work in the Legislative Building believe Assemblyman Brooks “may present a direct threat to others in the building,” according to the Horne letter, absent an imminent threat, it is dubious anyone can be banned from the building without notice and a hearing.
Now add back that Assemblyman Brooks has not yet been expelled from the Legislature, the order issued by Assemblyman Horne to bar Assemblyman Brooks from the building deprives the constituents of District 17 of their constitutional right to representation without any shred of due process, and the order effectively deprives Assemblyman Brooks of all of his core legislative functions, powers, and duties, all without being expelled from the Legislature, which otherwise requires a two-thirds vote of the Assembly’s membership.
Although each house of the legislature has the power to adopt rules of its proceedings, its rules cannot violate the constitution. This rule allows the chair of the Select Committee to:
“issue an order placing a member who is the subject of the Committee’s investigation on administrative leave, with pay and without loss of any benefits, during the pendency of the Committee’s investigation of the member[,]” which order may include “prohibiting the member from entering the legislative buildings or otherwise performing any legislative activities or acting as a legislator during the pendency of the Committee’s investigation of the member.”
Read that rule again. It should shock you. It is repugnant to representational democracy. By adoption of the Select Committee’s rules, one person is empowered to strip 64,000 residents of Assembly District 17 of their elected representation in the Assembly. No hearing, no review, no appeal–although the rule is supposed to be limited to when “necessary to preserve order and protect the integrity and decorum of the Legislature and the legislative process,” whatever comfort that provides.
Suspension of a member’s voting rights, especially by determination of a sole legislator, seems grossly contrary to the constitutional restriction that expulsion, which would work a permanent deprivation of voting rights, requires a two-thirds vote of the membership. What a perfect end run around the expulsion clause would it be if a legislative body could temporarily or indefinitely suspend a member from the house so long as it wasn’t a permanent expulsion. Indeed suspension is so rare that one review of state legislative disciplinary actions, though not comprehensive, cites only one example, and several examples of expulsions. Furthermore, parliamentary manuals of the U.S. House of Representatives, which has a richly developed parliamentary law that has been meticulously studied and published in that body’s precedents, reports that “[T]he weight of authority also favors the idea that there is no authority in the House to deprive a Member of the right to vote.”
Additionally, this rule violates the parliamentary principle prohibiting a body from delegating its powers to others. Mason’s at section 51 clearly states “A public body cannot delegate its powers or responsibilities to another person or groups, including a committee of its own members.” Even assuming the Assembly has the authority to suspend a member’s voting rights short of expulsion, this non-delegation principle prohibits vesting of that power in one person or in a committee.
Unilateral Rule Changes
Another provision of the Select Committee’s rules that is incredibly troubling from a parliamentary standpoint is Rule 2(3)(b), which provides that the Select Committee’s chair may “Waive or suspend any provision of these rules, as deemed necessary by the Chair, or adopt any additional rules or procedures, as deemed necessary by the Chair, to ensure that hearings are conducted in a fair, orderly and efficient manner.” This rule suffers from the same non-delegation concerns as the rule granting the chair the power to suspend members from legislative service. The power to adopt rules of proceedings is clearly vested in each house of the legislature, under article 4, section 6, of the Nevada Constitution.
To clothe one legislator with the power to waive, suspend, or amend rules violates a most fundamental principle of parliamentary law: that the rules of proceedings are within the control of a majority of the body creating them. (Mason’s sec. 13(7)). It also diminishes the fundamental equality among members by essentially making one members a super-member.
Does Due Process Apply?
My last concern is with due process. The Fourteenth Amendment to the U.S. Constitution provides that no state may “deprive any person of life, liberty, or property, without due process of law.” The full extent of this clause’s reach in the context of legislative investigations and discipline of its own members is unclear. However, Mason’s Manual contains some helpful provisions. Section 562(4) states that “Adequate notice, formal charges and a public hearing with the right to cross-examine witnesses have been held necessary components of procedural due process that must be afforded a member prior to expulsion.” Additionally section 562(6) provides “Whether federal due process or equal protection considerations are applicable to an expulsion may depend upon whether the member of the body has a liberty or property interest in the office held.” The National Conference of State Legislatures cautions that “Modern court cases establish that a legislator who is subject to disciplinary proceedings has the right to due process. Therefore, any special procedures set by a legislative chamber should be built upon the basic elements of a fair disciplinary process.”
Due process analysis is often a murky area of law, made more so since constitutional provisions exist expressly authorizing the each legislative house to discipline its members and to expel a member upon a two-thirds vote of the membership. But one things is pretty clear. It’s difficult to believe that any sort of due process protections apply when rules permit one legislator to essentially strip another member of the incidents of membership in the legislature, all without a hearing or a vote by the membership of the entire body.
This post is already
approaching exceeding 3,000 words, so I should stop before I go on any further. The bottom line is Assembly leadership has committed to adopting a fair, transparent process to consider Assemblyman Brooks’ conduct and whether he should continue to remain a member of the Assembly, but in their haste to get underway they are cutting critical parliamentary corners that could come back to bite them. The fact that the only expulsion precedent that exists is from 1867 should give all legislators pause to act carefully and deliberately.