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Try not to make the other side’s case

Lawyers love to critique the work of others, though rarely do they love having the same done to them. (Yes, this is going to be one of those posts.) One of the first things one learns in law school is to not make the other side’s case for them. It’s just basic persuasion, really. The last thing a person should want to do is undermine his or her arguments. This is one lesson that may need refreshing.

Today, nearly a month after barring State Assemblyman Steven Brooks from the Legislative Building, Brooks’ attorney filed a writ petition in the Nevada Supreme Court challenging the Legislature’s authority to bar Brooks from the building. The petition is terse–a mere 3 pages of legal substance. Some commentators, myself included, have previously opined that the Nevada Assembly’s actions to essentially oust Brooks from office without formally expelling him violates Brooks’ constitutional rights. These same commentators agree that Brooks has a strong case to be allowed to represent his constituents and to serve in the Assembly. Which is why, despite all of that agreement and the 22 days since the debarment took place, it is so surprising Brooks’ attorney has so terribly missed the mark in the petition.

He sued who?

In his writ petition, Brooks names the Legislature as the respondent. Unfortunately, Brooks has sued the wrong party. The Nevada Supreme Court in 2004, in Heller v. Legislature, held that the proper party to sue when challenging actions that are within the power of only one House, rather than the Legislature as a whole, is that House separately. Here, Brooks is challenging the letter informing him of his debarment from the Legislative Building (whether he is challenging the proper actions is discussed below). The only entity interested in this is the Nevada Assembly; the Nevada Senate does not have a horse in this race. Therefore, Brooks should have named only the Nevada Assembly. On that ground alone, the Legislative Counsel should have no trouble getting this writ petition dismissed.

He wants what?

Another problem with Brooks’ writ petition is it demands relief that is contradictory, irrelevant, or unnecessary. The petition requests the Court to command the Legislature “[to] immediately seat Assemblyman Brooks.” The key problem with this is, according to the writ petition itself, “Assemblyman Brooks has already been seated as a member of the 77th Regular Session of the Nevada Legislature.” One simply cannot demand relief that isn’t needed.

A strong case weakly argued

Despite these two glaring deficiencies, there are hints of a stronger case. The petition states that the debarment order, a letter from Assemblyman William Horne dated February 11, 2013, purporting to place Brooks on “administrative leave,” “has imposed . . . an extra-constitutional qualification on Assemblyman Brooks’ right and duty to serve his constituents,  which [the Assembly] cannot do.” Brooks cites to Powell v. McCormack in support of the petition. There, the U.S. Supreme Court held the U.S. House of Representatives could not exclude a duly elected member based on factors beyond the constitutional qualifications to hold office. This is a solid case to rely upon, as it both provides authority for the court to become involved when a legislator is prevented by the legislative house from serving, which review would otherwise be barred by the separation of powers doctrine, and it limits the authority of the legislature to judge the qualifications of its members. That is to say, if the body wants one of its members gone, the constitutionally prescribed mechanism is expulsion by a two-thirds vote.

Additionally, I question whether Brooks is setting out the best facts to demonstrate the alleged harm against him. Although it is true Brooks was informed of his debarment from the Legislature by Horne’s letter, the underlying actions that need to be challenged are the Select Committee on the Assembly’s rules, which grant authority to the committee’s chair to, among other things, bar legislators from the Legislative Building, and Assembly Resolution 5, which retroactively ratified those rules and granted authority to the committee. It is those actions–the adoption of the rules, the adoption of the resolution, and the enforcement of them both–that should be challenged.

Further, given the sweeping language in the resolution justifying the Assembly’s actions, it is all the more important to clearly and forcefully argue against those actions in the writ petition. The resolution states “the orders of the Chair of the Select Committee on the Assembly that have been issued pursuant to its committee rules are determined to be necessary, just and appropriate to preserve order and protect the integrity and decorum of the Legislature and the legislative process and to conduct the Committee’s proceedings to consider and investigate matters within the jurisdiction of Section 6 of Article 4 of the Nevada Constitution.” This language is clearly aimed at preventing courts from becoming involved in internal Assembly matters. This language will need to be addressed eventually. The sooner Brooks can encourage the Court to look beyond that language the better.

Brooks might also have relied on another constitutional provision to rebut the Assembly’s argument that its debarment order is necessary, just, and appropriate to preserve decorum–the requirement that the doors to each House remain open for its proceedings. If a House is without power to bar the public from attending its sessions, then how can it well be argued that it has power to do the same for a duly elected member?

In fairness to Brooks’ attorney, he is probably working under less than desirable conditions–a difficult client, dealing with criminal charges filed by the District Attorney, and possible charges by the Attorney General–and is doing the best he can with limited time and resources. It’s easy to look from the outside in and to critique. That said, for legislative and legal observers, it is somewhat disappointing a more even-handed legal fight isn’t shaping up and instead we are left to watch what is developing nicely as a train wreck.

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3 Comments

  1. […] Try not to make the other side’s case […]

  2. […] 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, […]

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