Monday morning Jon Ralston had the scoop that, on Sunday, the Legislative Counsel Bureau issued a memo construing the word “reject” in Article 19, Section 2(3), of the Nevada Constitution. I have read the opinion and it’s a good response to the suggestion that “reject” means the Legislature must take a formal vote to reject an initiative petition to preserve its power to pass a competing measure.
The gist of the opinion is that there are many ways to reject a measure in a legislature.
[W]hen the plain, ordinary and common meaning of the term “reject” is construed consistently with the time-honored customs and practices of legislative bodies, the most reasonable interpretation of the term “reject” in Article 19, Section 2(3) is that the Legislature is not required to take any specific type of legislative action in order to reject a statutory initiative. Rather, if the Legislature simply postpones or ceases all proceedings on the statutory initiative in the regular course of its legislative business by, for example, refusing to hear, accept, consider, acquiesce in or otherwise adopt the statutory initiative, the Legislature has rejected the statutory initiative for the purposes of Article 19, Section 2(3).
Memo from Kevin C. Powers to Brenda J. Erdoes, March 17, 2013, at 3 (hereinafter LCB Memo).
It’s a well-researched memo, nothing short of the wonderful work LCB performs for the Legislature day in and day out. Am I convinced my original argument is wrong? Not entirely. But it may be enough to keep the Supreme Court from intruding, especially in light of some case law giving the Legislature deference in construing constitutional ambiguities relating to legislative procedure. More below the break.
The opinion memo relies on the dictionary, law, and historical practice to support its conclusion that an initiative petition can die in the Legislature without formal rejection and still meet the constitutional standard that the Legislature “reject” the petition before it can propose a competing measure. The reasoning is a little weak in some areas, though it’s evident the opinion will give the Legislature enough cover to at least attempt a vote to propose an alternate, should supporters of an alternate whip up enough votes.
But the Memo won’t stop potential foes of an alternate from taking their case to court. If anything, the competing views on what it means to “reject” a statutory initiative demonstrate a reasonable dispute exists and that the Nevada Supreme Court should be called upon to decide the matter.
Plain meaning isn’t so plain
The LCB Memo begins its analysis citing to the dictionary. Among the definitions of “reject,” the Memo quotes from Webster’s: “to refuse to hear, receive, or admit” and “to refuse to accept, consider, submit to . . .” But dictionary definitions lend greater support to my position than to LCB’s. Here, the Legislature has not refused to hear, receive, admit, or consider Initiative Petition 1. The Petition was received and read in the Assembly on the first day of the session, was introduced and assigned the designation Initiative Petition 1, was ordered printed as an Assembly document, and was referred to committee. Additionally, the committee held a hearing to consider the Petition. Thus, it seems clear that the Petition was received, heard, and considered.
I can cite to dictionaries, too. Black’s Law Dictionary includes among the definitions of “rejection” an entry in the context of parliamentary law: “Failure of adoption or ratification. See Lost (3).” Black’s Law Dictionary 1400 (9th ed. 2009). The entry for “lost,” referring to parliamentary law, states “(Of a motion) rejected; not adopted <the motion is lost>.” Id. at 1031. Because the Legislature so clearly advocates using the term “reject” in the context of legislative procedure (discussed next), I thought those two definitions were especially appropriate.
Legislative practice and custom
The LCB Memo next turns to parliamentary procedure and legislative customs. Citing to Cushing’s Elements of the Law & Practice of Legislative Assemblies (1856), the Memo argues that “rejection of a bill ‘may be manifested in several ways.'” LCB Memo at 3. This slightly misstates Cushing, however. The full language of Cushing is “Opposition to a bill may be manifested in several ways.” Cushing, § 2341, at 907 (1874 ed.) (emphasis added). I’ve included a snippet from Google Books below.
I completely agree opposition to a bill can be manifested or inferred in several ways, but that’s not necessarily true of rejection. Indeed, if you read Cushing’s entire section on rejection (a whole page and a half), Cushing explores the ways in which a legislative House as a whole can reject a bill. Notably absent from the list of ways a legislature can “reject” a bill is refer it to committee and there let it die an ignominious death.
I apologize for this wonkish diversion into parliamentary procedure, but it’s something of a nerdy hobby. Cushing notes several ways in which a House can manifest rejection of a legislative measure. A “motion to reject may be made” at any stage of proceeding, such as
upon being refused a first reading, immediately after being read a first time, upon being refused a second reading, upon being refused a second reading at the time ordered therefor, immediately after seconds reading. . . , upon being refused to be committed [to committee], upon being refused to be committed at the time ordered therefor, upon being reported [from committee], after considering the report, after being ordered to a third reading.
Cushing, § 2342, at 907 (footnotes omitted) (citing to journals of the British Parliament). Note well, in all of these cases, a “motion to reject” is made. Cushing continues
The rejection of a bill, though implying a strong expression of opinion, does not differ materially, as to its practical effect, from that of any other of the motions by which the opinion of the house is adversely expressed.
Id. § 2343, at 907. Again, note well that rejection is construed only where the “opinion of the house is adversely expressed.” Simply taking no further action on a measure, as the LCB Memo argues is rejection, is not an adverse expression of opinion but merely restatement of fact: no further action was taken. The LCB Memo would impute a clear meaning from an otherwise expressively ambiguous fact. Measures die in the legislative process all the time, but only when the legislature “adversely expresse[s]” rejection can it properly be said a measure was rejected.
Case law from other jurisdictions recognizes the danger of inferring too much from legislative inaction, especially at the committee level. The failure of a committee of the legislature to act favorably on a proposed bill does not have the same probative value as a rejection by the entire legislative body. Maiter v. Chicago Bd. of Ed., 77 Ill. App. 3d 389, 395, 395 N.E.2d 1162 (1st Dist. 1979), judgment rev’d on other grounds, 82 Ill. 2d 373, 415 N.E.2d 1034 (1980) (citing Order of Railway Conductors of America v. Swan, 329 U.S. 520, (1947)). Inaction may also mean “nothing more than that the Legislature did not act.” Romeo v. Romeo, 84 N.J. 289, 418 A.2d 258 (1980) (quoting White v. Township of North Bergen, 77 N.J. 538, 556 (1978)). Furthermore, the Nevada Supreme Court has recognized the dangers of reading too much into inaction or silence. See Nevadans for Prop. Rights v. Sec’y of State, 122 Nev. 894, 141 P.3d 1235, at n. 14. For a deeper exploration of the dangers of interpreting inaction, see William Eskridge, Jr., Interpreting Legislative Inaction, 87 Mich. L. Rev. 67.
Because the Nevada provision expressly makes a distinction between rejection and inaction, the burden should be on the Legislature to indicate “[something] more than the Legislature did not act.” Rejection of a statutory initiative petition must be different than a failure to act on one (i.e. inaction), thus I still maintain taking no further action on an initiative petition is not enough to trigger the rejection that Article 19, Section 2(3), requires.
The Memo turns to the distinction between procedure in passing ordinary legislation, which must comport with constitutional requirements of bicameralism (the bill must pass both Houses in exactly the same form) and presentment (deliver the bill that has passed both Houses to the Governor), and in considering statutory initiative petitions, on which the Constitution is mostly silent. I agree that the Legislature in the latter case is entitled to great deference in crafting procedures, but the Constitution still uses the word “reject.”
The Memo argues
when the Legislature refers a statutory initiative to committee and the committee postpones or ceases all proceedings on the statutory initiative in the regular course of its legislative business by, for example, refusing to hear, accept, consider, acquiesce in or otherwise adopt the statutory initiative, the Legislature has, through its committee, rejected the statutory initiative for purpose of Article 19, Section 2(3).
LCB Memo at 4. Again, I think that distorts the meaning of “rejection,” both as to the dictionary definition and as to Cushing’s practices. The Memo cites to Mason’s Manual, the Legislature’s parliamentary authority (think of it as the legislative equivalent of Robert’s Rules), “[t]he practice of preventing the passage of measures by leaving them in committee without taking action on them, or laying them on the table in committee, is well established in some Legislatures.” § 635(3). Again, to quibble over language, the practice referred to is one of “preventing the passage of measures,” not one of “rejecting measures.” In the shorthand used among legislators and lobbyists alike, when a bill fails to make it out of committee, the bill “died in committee,” not the bill “was rejected in committee.” Only in the rare case where a bill is adversely reported (reported to the full House with a “do not pass” recommendation) can one fairly say the bill was rejected in committee.
Historical practice in Nevada isn’t that supportive of the LCB position
The Memo next turns to the actual practices of the Nevada Legislature, citing to two additional examples of which I was not aware, and which time and lack of readily accessible source material prevented me from discovering. (It’s quite a diversion to the Boyd law library, considering I do have a day job as an actual attorney.) I am greatly appreciative of the LCB’s research in this respect. But, again, reference to two of the cases supports my position at least as much as it supports LCB’s position.
The LCB Memo states there are only three instances in which the Legislature has “rejected” a statutory initiative and thereafter proposed a competing measure. Each time, the Legislature “rejected” the initiative in a different manner, but the Memo argues all three constituted effective rejection under the Constitution.
Failed of passage
The first example comes from 1921, in which the initiative petition failed of adoption on final passage in the Assembly. LCB Memo at 5; Assemb. J., 61st Leg., Reg. Sess., at 127 (Nev. 1921). As I discuss further below, because of the bicameralism principle, failure of the initiative to pass the either House on final passage should be enough to constitute rejection under Article 19, Section 2(3). So this example lends support to both LCB’s position and my position, but I think the balance tips in my favor because there was a vote on the initiative by the full Assembly, not simply inaction in committee, as is the case today.
No further action taken
The second example is from 1981. Initially, the initiative was placed on the Chief Clerk’s desk, an act which by itself signifies nothing (discussed below), but was later referred to committee. LCB Memo at 6; Assemb. J., 61st Leg., Reg. Sess., at 6-7 (Nev. 1981). A committee received extensive testimony on the initiative, but ended up taking no further action and made no report to the Assembly. LCB Memo at 6. However, several competing measures were introduced, all referred to the same committee as the initiative. One measure ended up passing the Legislature and was approved by the Governor, and was submitted to the voters as a competing measure. Id.
This example might support the Legislature’s position, but to admit that support requires one to read into the fact that the measure was never challenged in court. I think this example, which is the closest analog to today’s legislative inaction, suffers from the same problem I have raised.
Express rejection by concurrent resolution
Finally, the Memo cites to the 2011 example where both Houses adopted a concurrent resolution expressly rejecting the initiative petition. Id. This example provides the least amount of support to the LCB position because it seems clearly contrary to the notion that the Legislature needed to only cease action on the initiative to preserve its power to pass an alternate. But in any event, since there are only three instances in which the Legislature proposed an alternate, there is no clear legislative practice upon which to rely for my or the Legislature’s contentions.
Rejection vs. no action taken
The LCB Memo finally turns to addressing the “suggest[ion] that the framers of the constitutional provision intended the term ‘reject’ to have a different meaning because the framers” made a distinction between reject and no action is taken. Id. at 7. The LCB Memo addresses this distinction by running to the fringe. In LCB’s view, the distinction is to guard against the case where “the Legislature takes no action whatsoever to introduce the initiative after receiving it from the Secretary of State.” Id. The Memo states that “the act of introducing and reading a bill for the first time is a form of legislative action.” Id. at 8-9. Thus, “once the Legislature introduces the statutory initiative and reads it for the first time, the Legislature has taken action thereon. If, after that point, the Legislature refuses to hear, accept, consider, acquiesce in or otherwise adopt the statutory initiative, the Legislature has rejected the initiative.” Id.
The LCB Memo is trying to have its cake and eat it, too. If the Legislature has introduced and read a statutory initiative for the first time, without any objection, the Legislature has not “refuse[d] to hear, accept, consider, acquiesce in or otherwise adopt” the measure. The terms reject and no action is taken must be mutually exclusive; if they are not, then the terms are purely redundant and one is surplusage.
Ambiguities to be resolved in favor of legislative power
The Memo concludes with what I believe are its strongest arguments in favor of LCB’s construction of rejection: Nevada Supreme Court case law indicating that, where constitutional provisions relating to legislative procedure are ambiguous, the courts should give great deference to legislative construction. Id. at 8. But, critically, the construction must be reasonable. Construing initial consideration of an initiative petition and subsequent inaction as rejection strains the bounds of reason, as I have amply demonstrated.
How may a legislature adversely express rejection?
As I have argued, rejection cannot be fairly imputed when a legislature takes no further action on a measure. So what can be fairly read as a rejection that would satisfy the constitutional standard? First, I think the practice of 2011, of both Houses adopting a concurrent resolution expressly rejecting the initiative petition, comports with the Constitution.
Second, consistent with bicameralism, because an initiative petition must pass both Houses in order to be enacted, just as with regular legislation, should an initiative petition fail to pass on a vote on final passage, that single-chamber act can be read as rejection by the Legislature. This comports with the 1921 example the LCB Memo cited where an initiative petition failed on final passage in the Assembly.
Third, I think a motion to object to the consideration of an initiative petition, if successfully adopted before first reading, also expressly manifests rejection. Indeed, the Rules of the Assembly and Senate expressly allow for this parliamentary maneuver upon a measure’s first reading. Rule 109 of the Assembly Standing Rules and of the Senate Standing Rules. Thus, even under the Legislature’s own rules, rejection must be expressly manifested in order for it to count as rejection; there is no such thing as implied rejection.
The LCB Memo suggest that placing a measure on the clerk’s or secretary’s desk could constitute rejection, but I think that is incorrect. Mason’s Manual instructs the effect of laying a measure on the table “is not to be regarded as finally disposed of unless the rules clearly so provide.” § 337(3). Unlike the practice of the U.S. House, where a motion to lay on the table “has the effect of final adverse disposition of the question,” § 337(2), placing a measure on the clerk’s or secretary’s desk in Nevada has no such effect.
In contrast, a motion to postpone indefinitely has the object “not to postpone, but to reject the main motion without incurring the risk of a direct vote on it.” In effect, the motion is “a motion to reject the main question. Id. § 430. I think a motion to postpone indefinitely, given its clear effect, also would qualify as rejection under Article 19, Section 2(3).
There is a reasonable argument to be made on either side, further bolstering my conclusion and the conclusion of political commentators and other attorneys that should the Legislature pass an alternate, which is still no sure thing given my other concerns on that front (what about the Governor?), it will likely end up before the Nevada Supreme Court. And clear resolution of an ambiguous constitutional provision is never a bad thing.