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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. 

This is a debate that may not go away anytime soon. Today, the Las Vegas Sun’s Anjeanette Damon discusses the problems that have plagued this whole sordid saga. Interviews were conducted in private, evidence was compiled but kept secret, the deliberations of the Select Committee charged with the investigation of Brooks were closed, and all of the Assembly’s members save the members of the Select Committee voted on expulsion without hearing a single witness, without examining a single document. And there were reports that Brooks may have been considering legal action against the Assembly, although in light of his third arrest, he and his attorney may have bigger concerns.

Regardless of what Brooks and counsel choose to do, there are still due process concerns that are worthy of discussion, if not judicial resolution. As Patricia Cunningham put it on Friday’s “Nevada Week in Review,”

I have yet to hear anyone say that they felt that he [Brooks] was just wrongfully accused and that he should just remain there. I think everyone is concerned with his safety. It is the process that I think people are concerned with. The secrecy, as the attorney questioned–his due process rights. And where are the allegations coming from? What is the standard of proof? And is this hearsay evidence? There are too many questions. Was that a partial quorum? If you have seven members listen to the evidence, and they have to relay it to the full body, and they vote on it, that wasn’t a full quorum. They didn’t hear it. They heard other people’s perception with the sole purpose of swaying them in one direction.

Unquestionably, the Assembly possesses the power to expel a member from office. Article 4, Section 6, of the Nevada Constitution states “Each House … may punish its members for disorderly conduct, and with the concurrence of two thirds of all the members elected, expel a member.” Aside from stating each House shall determine the rules of its proceedings, the Constitution gives no guidance as to how a House should conduct itself in exercising its ultimate disciplinary power. But the fact that the Nevada Constitution is silent on the point does not give the Assembly, as Assemblyman Wesley Duncan said in his floor statement before the vote on expulsion, “absolute discretion.” Assemb. Daily Journal, 77th Leg., Reg. Sess., at 4 (Mar. 28, 2013). There are practices from which to draw that are helpful, including from the Assembly’s own parliamentary authority, Mason’s Manual, from the published precedents of other legislative bodies, and from case law that has reviewed legislative disciplinary proceedings. The Assembly in this case seems to have gone out of its way to ignore them all for the sake of expediency.

Although courts have been traditionally reluctant to intrude into matters of legislative disciplinary proceedings, that reluctance is not absolute. In Bond v. Floyd, the U.S. Supreme Court held that a state legislative body may not exclude a person from membership solely because of statements made by the person. Such an exclusion is a violation of the person’s First Amendment rights. In Powell v. McCormack, the Supreme Court held that the U.S. House of Representatives could exclude a member from seating only based on the exclusive constitutional qualifications to hold office. Finally, the 14th Amendment to the U.S. Constitution commands that a State may not “deprive any person of life, liberty, or property, without due process of law.” One case in particular demonstrates there could be serious constitutional infirmities with the process used to expel Brooks, one that would not require lawyers to contort themselves into pretzels of stretched reasoning.

Procedural due process is required in expulsion proceedings

In McCarley v. Sanders, 309 F. Supp. 8 (M.D. Ala. 1970),  a unanimous three-judge panel of the United States District Court for the Middle District of Alabama vacated the expulsion of an Alabama state senator because the senator was not afforded sufficient procedural due process. This case is striking in its similarities with the Brooks debacle and deserves discussion at length.

Facts

On August 12, 1969, State Senator McCarley was expelled from the Senate. Precipitating the expulsion was a newspaper article published on August 12, 1969, that charged McCarley with serious misconduct, possibly bribery. On the same day, the Alabama Senate adopted a resolution requesting that a grand jury be convened to inquire into the criminality of the allegations and that a select committee be appointed to inquire into the matter for possible legislative discipline. (A grand jury was later appointed, which returned an indictment charging McCarley with bribery, but he was later found not guilty by a jury. Id. at 10 n.5.) A separate resolution adopted the same day gave the select committee power to subpoena witnesses, take testimony under oath, and to compel the production of documents.

The next day, August 13, the select committee began hearings which were closed to the public. McCarley was invited to testify, but was told that McCarley “was not then being charged or accused of any wrongdoing,” but that the committee was merely “charged to investigate the matters contained in the newspaper article.” Id. at 10. The committee adopted rules that provided “that the hearing would be closed to the public; that neither McCarley nor his attorney could be present when other witnesses testified; and that neither of them would be permitted to cross-examine any witness appearing before the Committee.” Id.

McCarley testified as to his version of events and answered questions from the committee. The committee heard testimony from 18 other witnesses, “but neither McCarley nor his attorney were permitted to be present.” Id.

Shortly after midnight on August 20, 1969, the Committee made its report, “detailing in five typed pages its findings as to Senator McCarley.” Id. The report concluded:

As respects Senator McCarley the finding is inescapable that his conduct is incompatible with and contrary to his clear duty as a member of the Senate of Alabama. Viewed in the light most favorable to him and discounting in their entirety certain inconsistencies in his own testimony, Senator McCarley, by his own acknowledgement, was a knowing participant in a program of whatever origin which had as its purpose and goal the extraction of money from a citizen as a pre-condition to the orderly and proper exercise of the legislative process. He was, in short, by his own admission, a knowing accomplice. Conceding that he did not expect direct financial reward does nothing to void this finding.

Id. 

After receiving the report and after a recess, the Senate came back in at around 5 p.m. Then Sen. McCarley read a prepared statement to the Senate. At around 9:30 p.m., the Senate Rules Committee reported four resolutions, the first three of which were adopted in 10 minutes. The fourth resolution, the expulsion resolution, was adopted approximately 20 minutes after introduction, 32 votes to 1. Id. at 10-11.

Issue

The issues before the court were “whether the Fourteenth Amendment was applicable to require that the expulsion proceedings accord with procedural due process and, if so, whether McCarley had been afforded with procedural due process.” Id. at 9.

Reasoning

The State cited to Snowden v. Hughes, 321 U.S. 1 (1944), arguing that the due process clause was not applicable to the expulsion of a member from public office.

The Court rejected that argument, noting “it is now well established that the State’s interest must be balanced with the interests of the individual, and that a person may not be discharged or expelled from a state public office upon a ground involving criminal guilt, infamy, disgrace, or other grave injury to the individual until after such notice and hearing as is requisite to due process of law.” McCarley, 309 F. Supp. at 11 (citations omitted). The Court cited a Fifth Circuit opinion that “Whenever a governmental body acts so as to injure an individual, the Constitution requires that the act be consonant with due process of law.” Dixon v. Alabama State Board of Education, 294 F.2d 150, 155 (5th Cir. 1961).

The Court found

no serious argument that McCarley has been accorded even the barest rudiments of due process. He received no adequate notice. No formal charge against him was made before the Senate. The only procedure approaching a hearing accorded McCarley was before an investigating committee when he and his attorney were permitted to be present while McCarley made his statement and answered the Committee’s questions but were excluded from hearing the testimony of the other witnesses and were denied the right to cross-examine those witnesses. The transcript of testimony before the investigating committee had not been transcribed and was not available to the Senate before a vote was taken on the expulsion resolution. No evidence was taken before the Senate. In brief, the Senators voted to expel McCarley for corruption (though not clearly or adequately charged), and rendered him thereafter ineligible to either house (Section 54 of the Alabama Constitution) without according him an opportunity to defend himself and without themselves hearing any evidence. We must and do vacate McCarley’s expulsion from the Senate of Alabama.

McCarley, 309 F. Supp. at 11-12.

This paragraph is particularly damning when compared to the process afforded to Brooks. As I discuss in greater detail below, this case could provide a basis by which to vacate the Assembly’s expulsion.

What can be learned from McCarley as applied to Brooks’ ouster?

It must be said at the outset of this comparison that much of the Select Committee’s proceedings against Brooks are unknown. Testimony was taken in secret, deliberations were conducted behind closed doors, and the product of the investigation, a 900-plus-page report, is being withheld as confidential. Thus, my commentary is limited to what is available in the public record and the reasonable inferences that can be drawn from the same.

No adequate notice; no formal charge

In the McCarley case, the Court found McCarley “received no adequate notice[ and] [n]o formal charge against him was made before the Senate.” Id. at 11. The McCarley select committee was simply “charged to inquire into the allegations of [the] news article and promptly report its findings to the Senate.” Id. at 9-10.

In Brooks’ case, one of the early complaints about the process was that the Select Committee was not given a specific charge. By the only official public document available, Assembly Resolution 5, the Assembly found the Select Committee was charged “to consider and investigate matters within the jurisdiction of Section 6 of Article 4 of the Nevada Constitution.” Additionally, the Assembly resolved that the Select Committee is “instructed to continue its proceedings to consider and investigate matters within the jurisdiction of Section 6 of Article 4 of the Nevada Constitution.” Assemb. Res. No. 5, 77th Leg., Reg. Sess. (2013). The 687-word resolution makes not a single reference to Brooks, much less to his alleged expulsion-worthy disorderly conduct.

Seasoned political commentators and journalists still don’t know why Brooks was expelled from office, and I’d wager a guess that Brooks didn’t know the reason why either. In Steve Sebelius‘ words, the Select Committee is saying, “You have to trust us.”

The closest thing to a charging document is the letter sent to Brooks by Assemblyman William Horne. The letter states “The alleged conduct which will be the subject of the investigation includes failure to carry out certain responsibilities of an Assemblyman, engaging in unethical conduct and engaging in certain other deleterious conduct.” But this charge was never adopted by the Assembly and does not refer to specific conduct.

After the vote took place, the reason for expulsion became quite clear: Brooks was believed to be dangerous, and was proven to be at the very least unstable, as evidenced by his three arrests, most recently the same day as the expulsion vote. But ex post evidence of his instability cannot be used as a justification for the lack of sufficient due process.

Just like in the criminal arena, a legislator cannot fairly respond to charges of legislative misconduct unless the legislator is put on notice what the charges against him or her are and what the alleged wrongdoing is. This is all the more important because the Constitution limits the Assembly’s disciplinary power against its own to cases of “disorderly conduct.” So what is the disorderly conduct that warranted expulsion? We don’t know.

Even in the only other time the Nevada Assembly considered expulsion of a member, in 1867, there was a formal charge and formal resolutions were considered. (See Assemb. Journal, 1867 Leg., Spec. Sess.)

If the McCarley Court found the notice and charges against McCarley to be deficient, where at least a specific news article was referenced, a court would certainly be justified in finding the Nevada Assembly’s notice and charges equally as deficient, if not more so.

Lack of an adequate hearing

The McCarley Court found “The only procedure approaching a hearing accorded McCarley was before an investigating committee when he and his attorney were permitted to be present while McCarley made his statement and answered the Committee’s questions but were excluded from hearing the testimony of the other witnesses and were denied the right to cross-examine those witnesses.”

Comparing the McCarley case to the Brooks matter here is made more difficult because of the secrecy involved in this process. What we do know is the Select Committee hired a special independent counsel and private investigator to conduct an investigation and to compile an investigative report for use by the Select Committee in determining whether Brooks should be expelled. What we do not know is how much Brooks and his attorney were allowed to participate in that process. We do know that the Select Committee’s rules are virtually silent on the process to be employed during the investigation, yet ironically the rules state they are adopted to ensure “the conduct of hearings in a fair manner, consistent with protection of the constitutional rights of all persons appearing before the Committee.”

We know the special counsel conducted 50 interviews, gathered documents from many sources, including government agencies, and had to enter into confidentiality agreements in order to secure some of the records and interviews. Without more factual knowledge, my comments that follow are conjecture.

If Brooks and counsel were not allowed to be present during the interviews of the 50 individuals or to cross-examine those persons, we have a perfect match with McCarley. We do know that Brooks and counsel were invited to participate during the Select Committee’s consideration of the investigative report, but it is unclear whether Brooks was allowed to cross-examine witnesses. Because the Select Committee never heard directly from witnesses, my informed guess is a resounding “no.”

Because Brooks was likely not afforded the opportunity to be present during the examination of witnesses and was not allowed to cross-examine witnesses, he was not afforded due process, as was the case in McCarley.

Evidence, witnesses not made available to full legislative body

The McCarley Court took issue with the fact that a “transcript of testimony before the investigating committee had not been transcribed and was not available to the Senate before a vote was taken on the expulsion resolution” and that “[n]o evidence was taken before the Senate.” Very much the same is true with the Brooks case.

Although there was a 900-plus-page report produced for the Select Committee, the members of the Assembly who were not on the Select Committee were not privy to that report because of the confidentiality agreements negotiated to secure its production. Not a single shred of evidence was presented to the full Assembly. Although four members of the Select Committee did give impassioned floor speeches, from prepared remarks, the 34 members of the Assembly who were not on the Select Committee were asked to vote on expulsion without hearing from a single witness, without examining a single document, without knowing a single charge made against Brooks. This is not due process; this is a steamrolling.

Timing

Although not expressly a concern of the McCarley Court, they were implicitly concerned with the amount of time that lapsed between the time the Senate received its report and the time the expulsion vote took place. In the Brooks case, there is a similar concern. Brooks’ attorney was not provided with a copy of the investigative report until the Friday before the Select Committee’s Tuesday meeting. It was reported Brooks himself was not served with a copy of the report until the day before. Either way, we are talking 24-72 hours of time to review and prepare a defense to a report. That is not a lot of time. Additionally, only two days passed between the time the Select Committee wrapped up its hearing and when the Assembly voted to expel. Again, that’s not a lot of time.

Distinctions between McCarley and Brooks

There is an obvious distinction between the McCarley and Brooks cases. McCarley was never believed to present a danger to his colleagues or to others. Although it is apparent Brooks was potentially a danger, the nature of the potential legislative charges against Brooks counseled for more openness, more proof, more transparency, not less. Just because a person is dangerous does not mean the person is entitled to less due process. All it means is more measures may be taken in advance of an adjudication of wrongdoing to protect others from the alleged wrongdoer.

There is no doubt that there is sufficient evidence, even just in the public record, to find Brooks a menace to the legislative process and to expel him on that basis alone. But the process afforded to Brooks was insufficient and botched from day 1.

A few words about the need for privacy

The Select Committee did have the authority to close its meeting “to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.” Nev. Const. art. 4, § 15. But that provision must be read agreeably with the U.S. Constitution’s due process requirements. Additionally, when the person under investigation is a member of the House, the House should provide special justification for the need to close the meeting. The Houses of the Legislature are the only two public bodies in the state that are allowed to close committee meetings when the person under consideration is a member of the public body. Cf. NRS 241.031.

The reasons proffered to keep the investigation of Brooks secret are, in my view, insufficient. The Select Committee stated they wished to protect Brooks’ privacy. Brooks was an elected official, and any privacy interest he may have had is countered by the fact he conducts himself within the public sphere. The Select Committee also secured documentary and testimonial evidence through the use of nondisclosure agreements. This reason is laughable on its face, simply because the Committee was granted subpoena power to compel the attendance of witnesses and the production of documents. If the Select Committee was worried about uncovering and publicizing information that could be used against Brooks in the criminal proceedings, that, too, is a farce of a reason because the criminal prosecutors also have subpoena power.

Conclusion

The voters and future legislators deserve to know the standard by which a member may be expelled. Unfortunately, this precedent-setting expulsion will do little to provide guidance for future cases. Although legislative bodies are governed by precedent in their processes, because of the severe lack of transparency, the failure to adhere to minimal due process standards, and the lack of adherence to parliamentary norms, any precedential value this case presents should be seriously questioned by future legislative bodies.

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