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. (more…)
I thought a lighter aside was in order before some more “heavy” posts on Brooks and the infamous LCB “rejection” memo.
As an avid follower of legislative practice and procedure (a/k/a the boring stuff), I love the pomp, ceremony, and formality observed in the legislative process. Take for instance messages between the two Houses. In a bicameral legislature, such as Nevada’s, because most actions require the approval of both Houses, each House needs a way to communicate with the other. With the exception of ceremonial messages, such as announcing and escorting dignitaries to deliver addresses to the Legislature, most routine messages are communicated in writing.
Virtually unbroken since at least 1871 (and probably from the first legislative session, but I don’t have source material readily available online–Note to LCB Research: sure would be cool to digitize the legislative journals going back to the first legislature), each House referred to the other as the “honorable body.” See the snippet below from the 1871 Nevada Assembly Journal.
This practice remained virtually unchanged through 2011, although some of legalese (herewith, etc.) has been dropped.
To the Honorable the Assembly:
I have the honor to inform your honorable body that the Senate on this day passed…
Assemb. J., 76th Leg., Reg. Sess., at 5957 (Nev. 2011). But now, in 2013, something is amiss, at least with Senate-originated messages.
To the Honorable the Assembly:
It is my pleasure to inform your esteemed body that the Senate on this day passed…
Assemb. Daily J., 77th Leg., Reg. Sess., at 2 (Nev. Mar. 13, 2011). The language is more modern, less stuffy, to be sure, but why cast aside 150 years of tradition? The language remains unchanged in Assembly-originated messages.
By now my readers are surely thinking, “You weren’t kidding, this is pretty boring.” Admittedly, it’s trivial and a bit pedantic. But that’s not what drew my attention to this disruption of legislative tradition. It’s the fact that the Assembly’s Chief Clerk, Susan Furlong, seems unwilling to join her Senate counterpart, Secretary of the Senate David Byerman, in this needless assault on legislative tradition.
Over the past several weeks, from Day 1 through Day 45 of this session, if you listened closely to the Chief Clerk read the messages from the Senate, she omitted the new language, “It is my pleasure to inform your esteemed body,” and instead announced the message using the traditional form, “I have the honor to inform your honorable body.” [She did it again just today.]
I’m all for modernizing legislative procedure (I’m a fan of the Senate’s practice this session of waiving reading of its journal for the duration of the session), but is elimination of the repetitive use of the word “honor[able]” really reason enough to exchange it for “esteemed” and to cast aside 150 years’ worth of tradition in the process?
*The reference I was going for with this title derives from this scene of Liar Liar.
That’s the Legislative Counsel in a motion filed today to extend time to answer in Assemblyman Steven Brooks’ writ petition case in the Nevada Supreme Court. The motion, filed this morning, says Brooks’ petition (previously discussed here and here on this blog) “is lacking in cogent legal argument and citation to authority,” which is required under the court’s rules and relevant case law requiring counsel to “avoid lackadaisical litigation practices, such as discussing issues without ‘cogent argument and citation to relevant authority.'”
The motion also points out that Brooks’ attorney filed two days late an appendix that the Court ordered to be filed by Wednesday. The motion further states that because the Legislature’s legal staff are “urgently and immediately needed for bill drafting before the fixed deadlines for bill introductions, the Court should grant the Legislature a 9-day extension within which to file its answer to the petition.
The motion further notes that the petition raises constitutional issues of great “magnitude, complexity and importance.”
This case just got much more interesting for legal and politics wonks, such as myself.
Updated 5:05 p.m.
The Supreme Court granted in part and denied in part the Legislature’s motion. The Legislature has until Wednesday, March 20, 2013, at 3 p.m. to answer Brooks’ writ petition. That’s a week less than the Legislature requested. The Court also noted in a footnote that Brooks’ appendix was late.
That was political commentator Elizabeth Crum today on her TV program, The Agenda, characterizing the author behind this blog. I linked to the clip here (begins at 17:40 remaining).
No anonymous bloggers here; it’s still just me. I think I had half of Nevada’s political elite wondering who was behind this blog before I confirmed it via Twitter this morning. No anonymity was intended; a quirk of this blog’s design kept my identity pretty well hidden. The user name of a post’s author is only visible at the bottom of each post’s separate page and does not appear when viewing the home page. My About page was updated late this afternoon with my biographical blurb. No intent to hide in the shadows, just a technological oversight. I’m still Sean McDonald, and I approve this blog.
In other news, my “small” post about the constitutional limitations on the Legislature proposing an alternate to the margin tax initiative petition got quite a bit of attention today. As one might imagine, I was surprised to learn that my page views today were in the hundreds, not the tens they’ve been since I started up the blog. Spread like wildfire on Twitter–I’ve included a smattering of the tweets below.
Now that the clock is running on my 15 minutes of fame, I’m sure page views will be back in the more mundane tens by next week.
Nevada is one of 24 states with some form of popular initiative and referendum provision in its constitution. Since its adoption in 1912, the initiative process in Nevada, both for the proposal of statutory and constitutional enactments and amendments, has been fraught with much litigation and uncertainty. This legislative session and the general election in 2014 are looking to prove unexceptional in that respect.
This session, the Legislature is considering Initiative Petition 1, which proposes to enact a margin tax. The initiative is backed by the teachers’ union and other organized labor. Most experts agreed the 40-day limit on the Legislature taking action would expire, automatically placing the measure on the ballot. See Nev. Const. art. 19, § 2.
But early last week, Senate Republicans did the unthinkable: they proposed a mining tax package as an alternative to the margin tax. This set the pundits ablaze, wondering whether the Legislature would act in 40 days (by my count, the deadline is Friday, March 15), whether an alternate would even pass the Legislature, and whether the governor could successfully block such an alternate. Jon Ralston, in particular, focused on language in Article 19, Section 2, that seems to allow the Governor a veto over initiatives. I largely agree with Ralston’s conclusion, that should an alternate make it out of the Legislature and the Governor exercise a veto, the Nevada Supreme Court will ultimately be called upon to resolve the legislative-executive squabble over the Constitution’s meaning. But as I will discuss below, there are several other concerns that would need to be resolved first before the Court could address Ralston’s veto concern. This post will not discuss the wisdom of either the margin tax or the alternate on mining.
Background on Statutory Initiatives in Nevada
Article 19 of the Nevada Constitution sets out the power of the people to propose, by initiative, adoption or amendments to statutes or amendments to the state constitution. Because IP 1 propose to enact a statute, only the provisions relating to statutory initiatives are discussed.
Once a petition has qualified and been transmitted to the Legislature, Nev. Const. art. 19, § 2(2)-(3), the petition “shall be enacted or rejected by the Legislature without change or amendment within 40 days.” Nev. Const. art. 19, § 2(3). “If the proposed statute or amendment to a statute is enacted by the Legislature and approved by the Governor in the same manner as other statutes are enacted, such statute or amendment to a statute shall become law, but shall be subject to referendum petition.” Id. “If the statute or amendment to a statute is rejected by the Legislature, or if no action is taken thereon within 40 days,” the petition is submitted to the voters at the next general election. Id.
Recapping, the language sets out that (1) the Legislature has 40 days to act on a petition before it is automatically submitted to the voters at the next general election and (2) if the Legislature enacts the petition within 40 days, and if the Governor approves it “in the same manner as other statutes are enacted,” then the petition becomes law. Thus, it seems absolutely clear that, at least in the case of enactment, the governor is allowed a similar veto as the one he has over other legislation. See Nev. Const. art. 4, § 35 (discussing the Governor’s qualified veto power over legislation). There is some ambiguity, however, whether the veto over enacted petitions is absolute or qualified, as in the case of regular legislation under Article 4, Section 35. This is essentially Ralston’s concern.
Additionally, the Legislature can propose an alternate measure that will be placed on the ballot alongside the original petition. “If the Legislature rejects such proposed statute or amendment, the Governor may recommend to the Legislature and the Legislature may propose a different measure on the same subject, in which event, after such different measure has been approved by the Governor,” both measures are submitted to the voters at the next general election. Nev. Const. art. 19, § 2(3).
Whereas Ralston sees one problem with that part of Article 19, Section 2, (namely, what does “approved by the Governor” mean?), I see other problems: (1) may the Legislature propose an alternate measure after the 40-day consideration period on the petition has expired without expressly rejecting it; (2) must the Governor recommend an alternate before the Legislature may enact one; (3) would the Governor have an absolute (or even a qualified) veto over an alternate; and (4) what constitutes “a different measure on the same subject”?
Express rejection must occur before the expiration of the 40-day consideration period
In my view, if the Legislature does not affirmatively reject the petition within 40 days of its submission, the Legislature loses power to propose an alternate measure. Remember, the Constitution requires that the petition “shall be enacted or rejected by the Legislature . . . within 40 days.” Nev. Const. art. 19, § 2(3). If the Legislature does not enact the petition, the Constitution instructs “If [the petition] is rejected by the Legislature, or if no action is taken thereon within 40 days, the Secretary of State shall submit the [petition]” to the voters at the next general election. Id. (emphasis added). Thus, there is an operational distinction between rejection and rejection by default. In both cases, the petition goes to the voters. But in the case of rejection by default (i.e. the Legislature failing to act within 40 days), the Legislature loses power to propose an alternate.
The Legislature’s power to propose an alternate measure is limited to where “the Legislature rejects such proposed statute or amendment.” Id. (emphasis added). In reading Article 19, Section 2(3), as a whole, it is clear the section’s drafters knew the difference between rejection and no action taken within 40 days. Thus, because there is no ambiguity in the Constitution’s language, its plain meaning must be upheld: if the Legislature does not reject the petition by March 15, it will lose the power to propose an alternate.
My argument comports with legislative practice. See S. Con. Res. 4, 76th Leg., Reg. Sess. (2011); S. B. 495 § 4, 76th Leg., Reg. Sess., 2011 Nev. Stat. 921, 923. The Legislature rejected the petition on the last day of the 40-day deadline, adopting a concurrent resolution on March 18, 2011, thereby preserving its power to later propose an alternate measure. The alternate, S. B. 495, ultimately passed the Legislature on May 23, 2011, and was signed by the Governor on June 1. However, the petition in 2011, Building an Arena for a Stronger Future, ended up being invalidated by the courts in Taxpayers for the Protection of Nevada Jobs v. Arena Initiative Committee, Nos. 57157 & 58350. See Order Granting Petition for Rehearing, Vacating Previous Order, and Reversing, Taxpayers for the Protection of Nevada Jobs v. Arena Initiative Committee, Nos. 57157 & 58350 (Aug. 1, 2012) (invalidating petition because signatures gathered before description of effect was amended were invalid). Thus many of the challenges I lay out below were never brought or considered in the courts. My conclusion also comports with a 1951 Attorney General’s opinion, which found that the “40-day period set forth in [Article 19, Section 2] is jurisdictional.” Nev. Op. Att’y Gen. 18, at 36 (Feb. 19, 1951).
Therefore, given the plan language of the constitution and recent legislative practice, it appears clear that the Legislature must reject IP 1 in order to preserve its power to propose an alternate.
Must the Governor Propose an Alternate Before the Legislature May Consider One?
Untested in 2011 when the Legislature enacted S.B. 495 (or at any other time so far as I am aware) is whether the Governor must initially propose an alternate before the Legislature may consider and act on one. There is no reported Nevada case on point, and my brief research uncovered only one example of the argument being raised to block an alternate measure. During testimony on S.B. 495, Caesars Entertainment opposed the bill. Caesars’ lobbyist, John Sande III, said the Constitution
says if the Legislature rejects such proposed statute or amendment, then the Governor may recommend to the Legislature and the Legislature may propose a different measure on the same subject. It specifically says the Governor and the Legislature have to be involved initially, and the Governor has to make the recommendation. That is very important. Since the Governor has not recommended this measure to the Legislature, we believe that it is not in compliance with the Constitution and would not pass court scrutiny.
Hearing on S.B. 495 Before the S. Comm. on Revenue, 76th Leg., Reg. Sess. 9 (Nev. 2011) (testimony in opposition). Caesars dropped this reason from its opposition by the time the bill was heard in the Assembly. See Hearing on S.B. 495 Before the Assemb. Comm on Taxation, 76th Leg, Reg. Sess. 49-60 (Nev. 2011). Caesars also raised a single-subject argument against the bill, which is discussed further below.
Caesars submitted that unless the Governor proposes an alternate measure, the Legislature is without power to consider one. That is a plausible reading based on the text of the Constitution:
If the Legislature rejects such proposed statute or amendment, the Governor may recommend to the Legislature and the Legislature may propose a different measure on the same subject, in which event, after such different measure has been approved by the Governor,
both measures are submitted to the voters at the next general election. Nev. Const. art. 19, § 2(3). But as I discuss in this part, I do not think that is the best reading of the clause.
Provision Adopted in 1912; Amended in 1962
The Constitutional language at issue, Article 19, Section 2, was originally adopted in 1912. Since then, it has been amended six times, making it one of the most amended sections of the Constitution (only Article 10, Section 1, regarding property taxation, has been amended more–13 times). As originally adopted, the language that now appears at Article 19, Section 2, is quoted at in the AG opinion at page 34. Breaking that huge chunk of text down, we can see some critical, though subtle, differences between the section as originally adopted in 1912 and as it exists today.
As originally adopted, the relevant language read “If any such initiative measure so proposed by petition as aforesaid, shall be enacted by the legislature and approved by the governor in the same manner as other laws are enacted, same shall become a law.” So far pretty much the same as I explored above. The Governor has some sort of veto over petitions that are enacted by the legislature.
The original 1912 language continues, “In case the legislature shall reject such initiative measure, said body may, with the approval of the governor, propose a different measure on the same subject, in which event both measures shall be submitted by the secretary of state to the qualified electors for approval or rejection at the next ensuing general election.” Ah ha! Our first critical difference. I have combined the language below to more clearly show the differences.
In casethe legislature shall rejectsuch initiative measure, said body may, withthe approval ofthe governor,propose a different measure on the same subject, . . . .
In 1962, the whole original 1912 section (as amended in 1958) was struck out and replaced with
If the proposed statute or amendment to a statute is enacted by the Legislature and approved by the Governor in the same manner as other statutes are enacted, such statute or amendment to a statute shall become law. . . . If the Legislature rejects such proposed statute or amendment, the Governor may recommend to the Legislature and the Legislature may propose a different measure on the same subject, in which event, after such different measure has been approved by the Governor, the question of approval or disapproval of each measure shall be submitted by the Secretary of State to a vote of the voters at the next succeeding general election.
The most critical difference between the two is the 1912 language made no mention of the Governor recommending an alternate measure to the Legislature before the Legislature could act on one.
Legislative History on 1962 Amendment
The legislative history on the 1962 amendment is somewhat lacking (it was before legislative committees were required to keep records of their proceedings), but there is a contemporaneous letter from the Legislative Counsel stating the intent of re-adopting the article with revisions was to clarify language, not change it substantively.
“The joint resolution attempts to clarify the provisions on initiative and referendum as contained in Article XIX by re-writing the entire article. . . . The primary purpose of Assembly Joint Resolution No. 11 is to clarify wording, to eliminate uncertainties and to re-affirm and substantiate the decision of the Supreme Court in the case of Wilson v. Koontz.”
Wilson v. Koontz, 76 Nev. 33, 348 P.2d 231 (1960) related to the 1958 amendment and isn’t relevant here.
The explanation for the ballot said much the same. “Although entirely rewritten to clarify its provisions, the proposed amendment leaves Article 19 substantially unchanged, except that the method of amending the Constitution by the people is different.” Compiled Legislative History on Assemb. J. Res. 11, 50th Leg., Reg. Sess. (1960), at 45. Quite the assertion! Only in a legislature can something be intended to clarify and eliminate uncertainties yet do exactly the opposite.
In the original 1912 language, I think the answer is clear: the rules for enacting other laws govern. That means presentment to and approval of the governor of the measure, return by the governor and enactment of the measure by two-thirds of both houses over his veto, or default approval because the governor neither approves nor returns the measure within the constitutional deadline (there is no pocket veto in Nevada).
But the amended language in 1962 confused that: “[T]he Governor may recommend to the Legislature and the Legislature may propose a different measure on the same subject, in which event, after such different measure has been approved by the Governor, the question of approval or disapproval of each measure shall be submitted. . . .”
Given the stated intent of the 1962 amendment, I would argue the rules governing enactment of laws in the regular course still apply, and that the new language stating “the Governor may recommend to the Legislature” merely states what was always the case: the Governor may propose laws, but such language is not intended to be a condition on the Legislature’s power to propose an alternate initiative measure.
Of course it is an equally reasonable reading to argue the specific language in Article 19, Section 2, is unambiguous and must control: the Governor must propose a measure before the Legislature can act on it, giving the Governor sort of an absolute “pre-veto” rather than the qualified veto he has over typical legislation. The most analogous constitutional provision is the provision limiting the Legislature to subjects the Governor proposes in special sessions. See Nev. Const. art. 5, § 9(2) (“At a special session convened pursuant to this section, the Legislature shall not introduce, consider or pass any bills except those related to the business for which the Legislature has been specially convened.”). But in that case, the language expressly limits the Legislature’s power to act on business that is outside the scope of the Governor’s call of a special session, whereas the language in Article 19, Section 2, is better read as permissive, simply stating what the Governor may do, and not limiting what the Legislature can do. (More on vetoes below.)
I think reading Article 19, Section 2, as giving the Governor a “pre-veto” is antithetical to the initiative process. The popular initiative is designed to allow the people to pass direct judgment on legislation, especially in the face of a recalcitrant legislature. It seems absurd that the people would simultaneously reserve to themselves the power to bypass the Legislature, to enact laws, yet also give the Governor an absolute pre-veto over the legislature’s power to propose alternative measures.
What Kind of Veto Does the Governor Have over an Alternate Measure?
In both the case of enacting a petition and proposing an alternate, the measure must receive the Governor’s approval. “If the proposed statute or amendment to a statute is enacted by the Legislature and approved by the Governor in the same manner as other statutes are enacted, such statute or amendment to a statute shall become law. . . .” And, with respect to an alternate measure, “the Legislature may propose a different measure on the same subject, in which event, after such different measure has been approved by the Governor, the question” is submitted to the voters. Nev. Const. art. 19, § 2 (emphasis added). In the case of enactment by the Legislature of a petition, the language seems clear: approval by the Governor as like other statutes, which implicitly refers to Article 4, Section 35, of the Constitution. Under that section, bills are presented to the Governor for approval. Then, a bill can become law in one of three ways. First, if the Governor approves the bill, he signs it and it becomes a law. If he disapproves of the bill, he returns it with his objections to the House of origin, thereby vetoing the bill (note the word “veto” does not appear in the Constitution). But, second, if the Legislature passes the vetoed bill by a two-thirds margin in both Houses, the bill becomes law, notwithstanding the objections of the Governor. Finally, third, if the Governor fails to act on the bill within 5 days during session or 10 days after the session adjourns–which means either sign it or return it to the House of origin, if the Legislature is in session, or file it with the Secretary of State, if the Legislature is out of session–the bill becomes law as if he had signed it. Note that there is no pocket veto in Nevada, unlike the U.S. Constitution. If the Governor fails to act by the deadline when the Legislature is not in session, the bill becomes law, whereas with the Congress and the President, if the President fails to act and the Congress has adjourned, the bill dies (is pocket vetoed).
As Ralston pointed out in his post, what approval of the Governor means in the context of an alternate measure is less clear. The Constitution doesn’t say “after such different measure has been approved by the Governor in the same manner as other statutes are enacted.” So does that mean the Governor has an unqualified veto over alternate measures? I don’t know; there is a good argument either way. Certainly the Legislature could’ve written it that way. Or perhaps it thought that meaning was presumed since it already said it once in the same section.
It would be helpful to research other states’ constitutions to see if they might shed light on Nevada’s provision. Short of doing that, my brief research uncovered Washington’s constitution contains similar language to Nevada’s, but Washington expressly denies any gubernatorial involvement in that state’s initiative process. See Wash. Const. art. 2, § 1(d) (“The veto power of the governor shall not extend to measures initiated by or referred to the people.”).
At the very least, I think the language is clear the Governor has some sort of veto on both enacted petitions and alternate measures to a petition. Whether that veto is absolute or qualified depends on whether the Legislature is empowered to override a veto. In any event, if a measure is expressly rejected, fails of enactment because of veto, or no action is taken, the language of Article 19, Section 2, seems to be clear that the petition will go on the ballot at the next general election. But whether the Legislature gets a second bite at the apple after the Governor’s veto in either the case of an enacted petition or a proposed alternate is another question, and the language is ambiguous on that point, and the legislative history isn’t much help either.
Like so many other times when it comes to interpreting Nevada’s Constitution, we are hardly a model of clarity.
Assuming the Legislature properly preserves its power to propose an alternate to IP 1 this session, it may then propose “a different measure on the same subject.” Nev. Const. art 19, § 2. Generally speaking, this is the same single-subject rule that is imposed on the Legislature when enacting bills. See Nev. Const. art. 4, § 17. IP 1 is entitled, in part, “AN ACT relating to taxation; imposing a margin tax on business entities engaged in business in this State.” So what is the single subject? Taxation or margin tax? If the subject is the former, then the Legislature would have very broad latitude indeed to propose a mining taxation measure as an alternate. But if the subject is margin tax, then any alternate taxation measure on mining would be in serious jeopardy of running afoul of the single-subject rule in Article 19, Section 2.
As discussed above, in 2011, opponents to the Legislature’s alternate measure to Initiative Petition 1 raised single-subject arguments against S.B. 495. See Hearing on S.B. 495 Before the S. Comm. on Revenue, 76th Leg., Reg. Sess. 9-10 (Nev. 2011) (testimony in opposition). Given the fact the Legislature enacted S.B. 495 (by 38-3, and 21-0 margins in the Assembly and Senate, respectively), it implicitly felt comfortable it had at least a defensible argument that the bill was on the same subject as IP 1 in 2011. The titles of both IP 1 and S.B. 495 stated, in part, “AN ACT relating to taxation.”
There is much case law on the single-subject rule in Nevada, which I will not go into here. But suffice it to say, so long as both measures relate to taxation, a court would likely hold an alternate can propose a different tax measure from a margin tax and still be an appropriate alternate under Article 19, Section 2.
Can a Mining Tax Be an Alternate to the Margin Tax?
The last issue I want to briefly (ha!) discuss is whether a mining tax measure could be an alternate to IP 1. Steve Sebelius is of the opinion that yes, a mining tax could be the legislative alternate to the margin tax in IP 1. The Senate Republicans who proposed a mining tax measure as an alternate seem to agree. I don’t think that’s correct, at least not without some creative drafting. Senate Joint Resolution 15 of the 75th Session proposes to repeal the constitutional limitations on mining taxation. That measure, should it pass this legislative session, will go on the ballot in 2014. It cannot be the alternate to IP 1 primarily because they are separate measures, one proposing a change to law, the other a change to the Constitution. Both could be enacted as they are not mutually exclusive options, unlike a true alternate under Article 19, Section 2. The only way I see a new mining tax (or a higher tax rate) being a proper alternate to IP 1 is it must be conditioned on S. J. Res. 15’s ratification by the voters, or it must propose changes to law that do not implicate S. J. Res. 15 or the underlying provisions in the Constitution.
…This is Destined for Supreme Court Review
Assuming the Legislature timely rejects IP 1 this session, it will preserve its power to propose an alternate measure. Should the Legislature propose an alternate relating to mining, I’d expect nothing less of a full on legal onslaught to prevent the alternate from appearing on the ballot, whether it be through a gubernatorial assist (with a veto) or through legal challenges, on constitutional and procedural grounds, should the Legislature find itself caught up in a dispute with the executive branch over the scope of the veto power in the case of initiative measures. And with most of these tax issues decided in the 11th hour of a session as part of the endgame, I agree with Ralston: 2013 could be 2003 all over again.
Late today, the Nevada Supreme Court issued an order directing the Nevada Legislature to respond to Assemblyman Steven Brooks’ petition seeking to be allowed to resume his duties as a member of the state Assembly. This is now officially a three-branch affair, setting up what could become a battle between the Legislature and the Supreme Court over whether the courts may become involved in disputes over legislators in otherwise internal legislative affairs, and over how much discretion the Legislature has in determining the rules of its proceedings and disciplining its own. Politically, the executive branch, which brings criminal consequences to the table, is so far taking a backseat to the political drama playing out.
The order directs Brooks to file a an appendix within 5 days to include the letter from Assemblyman William Horne, which informed Brooks of his debarment from the Legislative Building, and any other documentation relevant to the court’s review of the petition. The Legislature will have 11 days from today to file an answer, including authorities (lawyer speak for legal argument), and Brooks will have 5 days after that to file a reply. That means by March 22, the matter should be fully briefed and ready for decision. Finally, the Court suspended a rule governing extensions of time to file responsive pleadings, indicating the Court is aware of the critical need to address the petition quickly.
As I wrote earlier today, I expect the Legislative Counsel will ably argue why the Court should dismiss the petition without ruling on the merits. But as I surmised earlier, perhaps this is shaping up to be a more fair fight, as the Court, based on the order, seems intent to have Brooks supplement his petition with additional relevant documentation. It’ll also be interesting to see if this remains assigned to a panel of three Justices, as most matters are handled at the Supreme Court are, or whether the Court en banc (the whole court) considers the petition.
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.
Today the Nevada Assembly adopted a fix-it resolution ratifying the Select Committee on the Assembly’s rules and orders. The resolution, Assembly Resolution 5, retroactively approves the rules the Select Committee adopted and the orders its chair, Majority Leader William Horne, issued pursuant to those rules at its first meeting on Monday, Feb. 11. The resolution states that the orders issued by the Select Committee’s chair and the committee’s 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.”
The resolution also instructs the Select Committee “to continue its proceedings to consider and investigate matters within the jurisdiction of Section 6 of Article 4 of the Nevada Constitution.” This also fixes the jurisdictional uncertainty I previously noted by essentially giving the Select Committee jurisdiction to consider and investigate any matter the Assembly could consider under article 4, section 6 of the Nevada Constitution. This is a very broad jurisdictional grant, and could include taking up the issue of Assemblyman Andrew Martin’s disputed residency, as some Republican members of the Assembly want.
This resolution is designed to create a clear record, to finally cross the T’s and dot the I’s that needed crossing and dotting, and to insulate the Assembly from possible legal challenges. Courts are generally very cautious to intrude into affairs of other branches, especially where the constitution textually commits a power to one branch. Here there is such a textual commitment because each house of the legislature is given express authority to discipline its members. But the resolution does not resolve the substantive constitutional concerns I laid out, particularly with respect to whether the Assembly can issue an order barring a person from the legislative building, much less a legislator.
As always, stay tuned.
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.
Welcome to the blog! This blog is intended as a space to host musings about politics and law in Nevada. Posts will be irregular in frequency. While it’s possible this blog might blossom into something bigger than its modest origins, it’s equally possible that it’ll be mothballed in four months. Stay tuned.
I chose the name Amicus Nevada as a (sort of) play on amicus curiae, which in the legal world is known as “friend of the court.” Accordingly, this blog will focus primarily on the political and legal news and current events in Nevada, although occasionally I may stray from this primary focus.
Obligatory disclaimer: the musings on the law contained herein are not intended as legal advice. If you have a legal problem, seek competent counsel. The musings posted on this blog belong to the author, and the opinions expressed on this blog are the opinions of the authors alone and do not reflect those of any employer or other entity.
With respect to comments, keep in mind this is a private blog and there is no right to post comments here, although generally germane, civil comments will be allowed to foster a dialogue about the issues presented here.
So without further ado, on to the first post.