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Open vs. closed: what the rules say
Late-breaking news tonight that the Assembly Select Committee on the Assembly (what a truly awful committee name), which has been looking into whether Assemblyman Steven Brooks should be allowed to continue to serve in office, will close significant portions of its meeting tomorrow night and, most importantly, will not release its special counsel’s investigative report. The Las Vegas Sun’s Anjeanette Damon broke the story via Twitter tonight.
We learned last week, when the Select Committee posted its agenda, that at least a portion of the meeting would be closed to the public. Some attention has been paid to the fact that the Nevada Constitution allows committees to hold closed meetings “to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.” Nev. Const. art. 4, § 15. Unfortunately, little attention has been paid to the Assembly’s Standing Rules.
This post will first discuss the origin of the constitutional language at issue. Then, it will turn to whether the Select Committee may close any portion of its hearing regarding Assemblyman Brooks. Finally, I will briefly discuss whether the Select Committee, the Assembly, or the LCB can withhold the independent special counsel’s report. In summary, there is a lack of clear authority for the Select Committee to close its meetings. That is a defect that is easily cured by the Assembly, simply by amending, suspending, or adopting new rules. Additionally, the investigative report is likely protected from compelled disclosure under the Public Records Act. (more…)
LCB opines on rejection, makes it mean nearly anything
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…)
Amicus Nevada 