Professional Documents
Culture Documents
cohnc@unr.nevada.edu
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23 PRELIMINARY STATEMENT
24 This complaint is being brought under the Judicial Rules of Procedure as enacted by
25 ASUN Public Law 75–17, as amended by ASUN Public Law 75–56. This complaint alleges,
2 a bill making amendments to the Judicial Rules of Procedure. Therefore, this complaint is
3 being brought under the rules as they stood at the end of the 75th Session of the Senate.
5 Jurisdiction in the Judicial Council of the Associated Students is proper under Article
6 IV, section 4 of the Constitution of the Associated Students. The Judicial Council is the sole
8 GENERAL ALLEGATIONS
9 The Parties
10 1. Petitioner is, and at all times relevant to this complaint was, a member of the
11 Associated Students of the University of Nevada, within the meaning of Art. I, sec. 1(a) of
13 2. Eli Reilly is, and at all times relevant to this complaint was, the President of
15 3. Priscilla Acosta was the Speaker of the Senate of the Associated Students at
17 4. Gracie Geremia is the Speaker of the Senate of the Associated Students at its
18 77th Session.
19 5. Alejandra Reyes is the Secretary of the Senate of the Associated Students. She
21 6. Caitlin Gunn was Secretary of the Senate from April 16, 2008, to October 13,
22 2008.
25 Associated Students, established under Article II of the ASUN Constitution. It is the sole
2 Factual Allegations
3 9. Petitioner repeats and realleges each and every allegation contained within
5 10. On April 16, 2008, the 76th Session of the Senate convened, pursuant to
7 11. During that meeting, Respondent Acosta was elected Speaker of the Senate
9 12. On April 16, 2008, at or about 6:00 p.m., Eli Reilly was sworn in as President
11 13. At a time subsequent to being sworn in, the President submitted his proposed
12 budget, in compliance with his obligations under the Constitution (“The President shall
13 submit a proposed budget to the Senate” (ASUN Const., Article III, section 2(e)).).
14 14. Thereafter, on May 2, 2008, the Senate began consideration of the President’s
15 proposed budget through its Budget and Finance Committee. The minutes of the Committee
17 15. The Committee met on May 14, 2008, to continue consideration of the budget,
18 according to the agenda of the meeting. There is no audio record or minutes posted on the
19 Web site of the Associated Students for that meeting as of the time of filing of this complaint.
20 16. The Senate’s agenda for May 30, 2008, shows that “S.B. 76-3: Budget of the
21 Associated Students in Schedule A for the 2008-09 fiscal year” was up for first reading.
22 Given that evidence, the budget was presumably reported from the Budget and Finance
24 17. The provisions of the Nevada Open Meeting Law (Chapter 241 of NRS) and
25 the Nevada Public Records Act (Chapter 239 of NRS) are actionable in the Judicial Council
2 Accountability Act of 2008 because such laws are incorporated against the ASUN by the
3 terms of those laws, under Board of Regents Policy, and/or under ASUN law.
4 18. As of the date of the filing of this complaint, the Respondent Senate of the
5 Associated Students is unable to provide Petitioner with a copy of the minutes from the
6 meeting of the Senate held May 30, 2008. The Respondent Senate is also not able to produce
8 19. Pursuant to NRS 241.035(2), minutes of meetings of a public body are public
9 records and must be made available within 30 working days of the meeting. Accordingly,
11 20. By its total failure to provide minutes and audio recordings of the meeting
12 specified in Paragraph 18, the Respondent Senate is in violation of NRS 241.035(2) and (4)
13 and has further violated NRS 239.010(1) by failing to produce public records.
15 posted at the principal office of the public body and at not less that three other separate,
17 22. The Respondent Senate posted notice of its May 30, 2008, meeting in only 2
18 separate places, besides the place of its principal offices in the Joe Crowley Student Union on
20 23. The failure of the Respondent Senate to place its notice and agenda of the
21 May 30, 2008, meeting in enough places constituted a violation of NRS 241.020(3)(a).
22 24. The notice and agenda of the May 30, 2008, meeting does not list the “time,
23 place, and location” of the meeting in sufficient detail, in violation of NRS 241.020(2)(a).
24 25. On information and belief, Petitioner alleges that the bill designated Senate
25 Bill 76-3, relating to the budget of the Associated Students, was passed at the May 30, 2008,
2 26. At some indeterminate time subsequent to the passage of the bill alleged in
3 Paragraph 22 (months later), an enrolled bill was printed, memorializing the Senate’s alleged
4 action on the budget. This enrolled bill bears the signature of the Speaker of the Senate,
5 Priscilla Acosta, but bears no other mark (Exhibit A). This document was obtained on
6 [DATE] and was certified by the Secretary of the Senate, witnessed by a Senator, to be a true
7 and correct copy of the enrolled bill bearing the original signature of Respondent Speaker
9 27. The bill does not carry the proper certification of the Secretary of the Senate,
10 in violation of section 6 of the Bill Governance Act of 2008 (ASUN Public Law 75-39; 75
14 29. The Senate and the President are unable to present evidence of presentment of
15 Senate Bill 76-3, in violation of section 9 of the Bill Governance Act of 2008 (ASUN Public
19 31. The enrolled bill does not bear evidence of presentment on the face of the bill,
20 in violation of section 10(a) of the Bill Governance Act of 2008 (ASUN Public Law 75-39;
22 32. On information and belief, Petitioner is now aware that the budget bill was
23 signed by the President at some time after the exhibit referred to in Paragraph 26 was
24 provided to Petitioner.
25 33. On information and belief, the exact date of the President affixing his
2 affixed to the enrolled bill, in violation of section 10(b) of the Bill Governance Act of 2008
4 34. The enrolled bill has not been promulgated by the Archivist of the Associated
5 Students, in violation of section 12 of the Bill Governance Act of 2008 (ASUN Public Law
7 35. The enrolled bill has not been assigned an ASUN Public Law number by the
8 Archivist of the Associated Students, in violation section 12(b) of the Bill Governance Act of
10 36. Additional bills were subsequently passed by the Senate amending the initial
11 budget bill creating the budget for this fiscal year, namely: bills numbered S.B. 76-9, S.B.
13 37. With respect to Senate Bills 76-9 and 76-11, Petitioner cannot determine to
14 any reasonable degree of certainty, based on Petitioner’s review of the agendas and minutes
16 38. With respect to Senate Bill 76-15, Petitioner alleges the bill was passed at the
18 39. The minutes of the January 21, 2009, meeting do not state the substance of
19 what was decided with respect to the bill, in violation of NRS 241.035(1)(c).
20 40. With respect to Senate Bill 76-18, Petitioner alleges the bill was passed at the
22 41. The minutes of the February 25, 2009, meeting do not state the substance of
23 what was decided with respect to the bill, in violation of NRS 241.035(1)(c).
24 42. On information and belief, the Associated Students engaged in spending from
25 the period July 1, 2008 (the beginning of the fiscal year), to date. At least until the point
3 43. On information and belief, the Respondent President authorized the release of
4 funds and spending, in violation of Article II, section 3(a)(2) of the ASUN Constitution.
6 224 of the Association Budget and Finance Act of 2008 (ASUN Public Law 75-52; 75
9 bill, as defined, generally, by the Association Budget and Finance Act of 2008 (ASUN Public
10 Law 75-52; 75 ASUN Stat. 139), and by the established practice of the Senate.
11 46. The enrolled bill mentioned in Paragraph 26 is not a proper appropriations bill
12 because it does not make appropriations. Further, according to the plain language of the bill,
14 47. A budget is not a continuing document. A budget only has effect in the fiscal
17 48. The Constitution of the Associated Students requires a specific process play
18 out before laws are created. Section 4 of Article II of the Constitution requires as follows:
23 49. The Senate’s constitutional powers state that, relevant to this complaint, that
24 “The Senate shall have the [power] [t]o set a budget for the ASUN, but no money shall be
25 spent from the treasury without appropriations made by law” (Article II, section 3(a))
2 50. The Constitution presumes that the exclusive means of creating binding
5 51. The Senate has enacted legislation governing the enrollment of bills, the Bill
6 Governance Act of 2008 (ASUN Public Law 75–39; 75 ASUN Stat. 109). That law, among
7 other things, creates a process by which bills are to be enrolled subsequent to passage by the
9 52. The Senate Report accompanying the bill creating the law states:
16 53. It becomes clear that, in reading the law, its provisions were also intended to
17 create records of the essential acts of the Senate, its officials, and the President related to the
18 enactment of laws to create sufficient evidence to prove the enactment of legislation. The
19 author’s statement on the bill reveals as much. “Some provisions of the bill deal with the
21 54. Senate Rules also govern the enrollment of legislation. Rule XVIII of the
22 Rules of the Senate provides that “the Secretary [of the Senate] shall cause [every bill which
23 shall have passed the Senate] to be enrolled. After enrollment, the Secretary shall certify the
24 bill, and then the Speaker shall sign it.” This rule is to be read in concert with the Bill
25 Governance Act of 2008. Senate Rule XVIII also provides, in clause (b), that “[t]he Secretary
2 Secretary shall make a note of the time and date of presentment.” Again, the clear purpose of
3 the rule is to establish sufficient evidence to corroborate essential steps in the legislative
4 process.
5 55. Senate Rule XIX, governing the officers of the Senate, provides in clause (e)
6 the duties of the Secretary of the Senate. In particular, paragraph (2)(D) states that the
7 Secretary shall “examine all bills after passage by the Senate to see that they are correctly
8 enrolled and forthwith present those bills to the President in person after their signature by
9 the Speaker, and report to the Senate the fact and date of their presentment.”
11 Violation of NRS 241.035(2), Request for Declaratory Judgment for Violation of the
12 Open Meeting Law, Preliminary and Permanent Injunction for Compliance with the
14 56. Petitioner repeats and realleges each and every allegation contained within
17 and NRS 239.010(1) to provide minutes to the May 30, 2008, meeting of the Respondent
19 58. Petitioner requests a declaratory judgment that the failure to provide the
21 NRS 239.010(1).
23 necessary to ensure that the Respondent Senate provides the documents specified in
24 Paragraph 57, and timely provides public in the future that are required by law to be
25 disclosed.
3 60. Petitioner repeats and realleges each and every allegation contained within
5 61. NRS 241.036 states “[t]he action of any public body taken in violation of any
6 provision of this chapter is void.” Accordingly, Petitioner requests the Council declare the
7 actions taken during the May 30, 2008, Senate meeting void and of no effect.
9 limitations on when a person can bring a complaint seeking declaratory and injunctive relief
10 to seek compliance with the OML or to have actions declared void, NRS 241.038 states that
11 the Board of Regents is to establish the regulations governing student governments and is to
13 63. The parallel provision at the Regents level to NRS 241.036 is at Title 4, Board
14 of Regents Handbook, Chapter 20, Part B, section 3(5)(a): “Violations of this section shall be
15 treated as follows: a. Any action taken in violation of the provisions of this section is void.”
16 Because ASUN has enacted its own legislation stating that its officials, in the ASUN context,
17 are to comply with the law, the provisions of the OML as applied on ASUN by the Regents is
18 enforceable in this Council under the constitutional judicial power of the Associated
19 Students.
20 64. Further, the Regents did not institute a statute of limitations on enforcement
21 complaints, nor did ASUN. Therefore, there is no statute of limitations barring this claim for
22 relief.
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2 Violation of NRS 241.035(2) and (4), Request for Declaratory Judgment for Violation of
3 the Open Meeting Law, Preliminary and Permanent Injunction for Compliance with
5 65. Petitioner repeats and realleges each and every allegation contained within
7 66. Respondent Senate has failed to provide an audio recording of the May 30,
9 67. Petitioner requests a declaratory judgment that the failure to provide the audio
12 necessary to ensure that the Respondent Senate provides the documents specified in
13 Paragraph 66, and timely provides public in the future that are required by law to be
14 disclosed.
17 69. Petitioner repeats and realleges each and every allegation contained within
19 70. NRS 241.036 states “[t]he action of any public body taken in violation of any
20 provision of this chapter is void.” Accordingly, Petitioner requests the Council declare the
21 actions taken during the May 30, 2008, Senate meeting void and of no effect.
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2 Violation of NRS 241.020(3)(a), Request for Declaratory Judgment for Violation of the
3 Open Meeting Law, Preliminary and Permanent Injunction for Compliance with the
5 71. Petitioner repeats and realleges each and every allegation contained within
7 72. By its failure to post notice of the May 30, 2008, meeting in enough locations,
9 73. Petitioner requests a declaratory judgment that the failure to post notice of
12 necessary to ensure that the Respondent Senate posts notice in sufficient places.
15 75. Petitioner repeats and realleges each and every allegation contained within
17 76. NRS 241.036 states “[t]he action of any public body taken in violation of any
18 provision of this chapter is void.” Accordingly, Petitioner requests the Council declare the
19 actions taken during the May 30, 2008, Senate meeting void and of no effect.
21 Violation of NRS 241.020(2)(a), Request for Declaratory Judgment for Violation of the
22 Open Meeting Law, Preliminary and Permanent Injunction for Compliance with the
24 77. Petitioner repeats and realleges each and every allegation contained within
2 of the May 30, 2008, meeting, the Respondent Senate is in violation of NRS 241.020(2)(a).
3 79. Petitioner requests a declaratory judgment that the failure to list in sufficient
4 detail the place and location of the meeting is in violation of NRS 241.020(2)(a).
6 necessary to ensure that the Respondent Senate lists in sufficient detail the place and location
7 of its meetings.
10 81. Petitioner repeats and realleges each and every allegation contained within
12 82. NRS 241.036 states “[t]he action of any public body taken in violation of any
13 provision of this chapter is void.” Accordingly, Petitioner requests the Council declare the
14 actions taken during the May 30, 2008, Senate meeting void and of no effect.
16 Declaratory Relief
18 83. Petitioner repeats and realleges each and every allegation contained within
20 84. The Constitution explicitly governs the process for enacting legislation
21 carrying the force of law in ASUN. In particular, certain actions must play out before
22 legislation which has passed the Senate, according to lawful process, becomes law. Article II,
23 section 4(a) of the ASUN Constitution states “Every bill which shall have passed the Senate
24 shall, before it becomes a law, be presented to the President of the Associated Students”
25 (emphasis added).
2 essential element of the legislative process; mere passage of measures by the Senate does not
3 create law. Indeed, the President cannot play his constitutional role to consider the Senate’s
5 86. The Constitution continues, “If the President approves the bill, he or she shall
6 sign it. If not, he or she shall return it, with his or her objections, to the Senate, who shall
7 enter the objections in their records, and proceed to reconsider it” (ASUN Const. Art. II, sec.
8 4(b)). The Constitution contains a time limit on presidential vetoes (returning of the bill to
9 the Senate): “If any bill shall not be returned by the President within five working days after
10 it shall have been presented to him or her, the same shall be a law, as if he or she had signed
13 “Every bill…shall…be presented”, “If the President approves the bill, he…shall sign it. If
14 not, he…shall return it”. The fact that a physical bill, and not mere notice of knowledge of
15 the Senate’s actions, is required is evidenced by the use of the verb “presented”. The context
16 of the use of the verb is clearly that of presentment, “the act of presenting to an authority a
18 88. The fact that ASUN’s Constitution mirrors the federal Constitution’s
19 presentment clause is not without accident. The federal Constitution, art Article I, section 7,
20 clause 2, states “Every Bill which shall have passed the House of Representatives and the
21 Senate, shall, before it become a Law, be presented to the President of the United States: If
22 he approve he shall sign it, but if not he shall return it…”. The operative language is
24 Because of the fact that the two constitutions mirror one another, the Council should consider
25 guidance from U.S. Supreme Court precedent, in particular INS v. Chadha (462 U.S. 919
3 89. Lest there be any doubt of the Constitution’s meaning that presentment be a
4 physical act with a physical, written instrument communicating legislative acts to the
5 President for his consideration, the Senate clarified the process in enacting the Bill
6 Governance Act of 2008., which is to be read in concert with the ASUN Constitution and the
8 90. Section 6 of the Bill Governance Act requires whenever a bill has passed the
9 Senate “the Secretary of the Senate shall carefully enroll the bill, taking care to ensure that
10 the bill accurately and exactly reflects the action of the Senate. The Secretary shall affix to
11 the back of the bill a certificate attesting to its proper enrollment,” which is in a form fixed
12 by the law.
13 91. Section 7 of the Act further defines enrollment: “Every bill in the Senate shall,
14 when such bill has passed the Senate, be printed, and such printed copy shall be called the
15 enrolled bill, and shall be signed by the presiding officer of the Senate and presented to the
16 President of the Associated Students. Only a single copy of an enrolled bill shall be
17 prepared.”
18 92. Section 8 of the Act provides that presentment is a physical act. “Each
19 enrolled bill, subsequent to being signed by the presiding officer of the Senate, shall be
20 presented to the President…by the Secretary. Such presentment must be done in person.”
21 93. Since presentment is an essential element on the road to a bill becoming law
22 under the Constitution, the Senate felt it wise to create proof of the fact of presentment.
23 Section 8 of the Act continues, “The Secretary shall note in a journal the date and time of
24 presentment of enrolled bills and the official who received the enrolled bill. Such journal
25 shall be competent evidence of the date of presentment.” Because the constitutional time
2 presentment occurs, the date (and perhaps the time) of presentment is a crucial fact to be able
3 to competently establish.
4 94. To create evidence of presentment on the presented enrolled bill itself, section
5 10 of the Act provides “any person duly authorized shall endorse by stamp, in the left-hand
6 margin of the first page of the enrolled bill, the date (and if necessary the time) of receipt” as
8 95. All of these provisions, taken together, make it abundantly clear that
9 presentment is not optional; it is an indispensible part of the legislative process. After the
10 Senate passes a bill it must be physically presented to the President, so as to allow the
12 96. Given the Senate’s express desire that the Government be able to document
13 evidence of presentment in case any question should ever arise as to whether a bill was
14 properly enacted into law according to the exclusive constitutional process, the standard of
15 review should be: absent competent evidence that a bill was presented to the President, after
16 its proper enrollment, the presumption must be that the bill was never presented, and
18 97. Because the Government is unable to produce competent evidence that S.B.
19 76-3, the budget bill for the fiscal year ending June 30, 2009 (this fiscal year), according to
20 the process laid out in the Bill Governance Act of 2008, this Council should declare that the
21 budget was not enacted into law and is therefore unenforceable and unactionable.
23 Declarative Relief
25 98. Petitioner repeats and realleges each and every allegation contained within
2 99. Article II, section 3(a)(2) states that the Senate has exclusive power “[t]o set a
3 budget for the ASUN”. But, perhaps more important than that exclusive grant of authority, is
4 the limitation placed on the Association’s power to spend contained in the remainder of that
5 clause: “but no money shall be spent from the treasury without appropriations made by law”.
6 100. Having already established the exclusive constitutional and lawful means for
7 enacting laws, and since authority to spend can only be granted through “appropriations
8 made by law,” the Council should declare that all obligations entered into, spending, and
9 other actions otherwise taken as a consequence of a budget being passed by the Senate, were
10 entered into unlawfully, and that all actions taken under the authority of a budget that was not
13 Injunctive Relief
15 101. Petitioner repeats and realleges each and every allegation contained within
17 102. Assuming the Council grants the relief granted in the Ninth and Eleventh
18 Claims for Relief, an injunction should be issued preventing any further obligation arising
19 out of the budget from being incurred or paid. In other words, the Council should order all
20 spending and other actions which would normally be taken in consequence of a budget being
21 lawfully passed halted until the proper process has played out.
25 103. Petitioner repeats and reallege each and every allegation contained within
2 104. Because a budget was never lawfully enacted for this fiscal year, the Council
3 should declare any and all subsequent bills amending the budget for this fiscal year null and
5 105. The Council should enjoin the Government from enforcing or otherwise
6 acting on any and all amendments to the budget passed subsequent to the budget bill,
9 Injunctive Relief
11 106. Petitioner repeats and realleges each and every allegation contained within
13 107. The Council should enter an order freezing the accounts of the Association, or
14 within the control of the Association, including an order that all outstanding obligations be
15 stopped until a full audit can be performed on the Association’s accounts at the direction of
16 the Council.
17 108. The Council should further order the shutdown of the Government, except for
18 essential elements necessary to maintain the health, safety, or welfare of the members of the
19 Association, until such time as the Council is satisfied that appropriations have been made by
22 Violations of NRS 241.035, Request for Declaratory Judgment for Violation of the Open
23 Meeting Law, Preliminary and Permanent Injunction for Compliance with the Open
25 109. Petitioner repeats and realleges each and every allegation contained within
2 110. This Claim for Relief makes specific reference to Paragraphs 36 through 41 of
3 this Complaint.
4 111. Because either the minutes do not exist, in violation of NRS 241.035(1), or do
5 not sufficiently state the substance of what was decided at the respective meetings, in
6 violation of NRS 241.035(1)(c), Petitioner requests the subsequent bills making amendments
10 112. Petitioner repeats and realleges each and every allegation contained within
12 113. On information and belief, the Associated Students engaged in spending from
13 the period July 1, 2008 (the beginning of the fiscal year), to date. At least until the point
14 mentioned in Paragraph 26, the spending could not have been lawful, in violation of Article
16 114. On information and belief, the Respondent President authorized the release of
17 funds and spending, in violation of Article II, section 3(a)(2) of the ASUN Constitution.
19 224 of the Association Budget and Finance Act of 2008 (ASUN Public Law 75-52; 75
21 116. Because it cannot be established by any competent evidence that a budget was
22 enacted while certain spending was occurring, Petitioner requests the Council declare that the
23 President violated section 224 of the Association Budget and Finance Act of 2008.
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3 117. Petitioner repeats and realleges each and every allegation contained within
5 118. Even if the Council finds the previous Claims for Relief unconvincing, the
6 Council should find and declare that Senate Bill 76-3 (and the subsequent bills amending the
7 budget) are not proper appropriations bills under the Association Budget and Finance Act or
8 the established practice of the Senate in making appropriations during the 75th Session.
10 Violation of Section 12 of the Bill Governance Act of 2008, Failure to Promulgate Bill
11 119. Petitioner repeats and realleges each and every allegation contained within
18 2. For a declaration that the bills relevant to this complaint are not properly
20 3. For an order enjoining the Government from engaging in any and all spending
21 and other actions which would normally be taken in consequence of a budget being lawfully
22 passed halted until a budget for the current fiscal year is properly enacted into law.
24 budgetary authority be stopped until a full audit can be performed on the Association’s
2 necessary to maintain the health, safety, or welfare of the members of the Association, until
3 such time as the Council is satisfied that appropriations have been made by law in support of
4 the Government.
7 7. For such other relief as directly requested under each Claim for Relief
8 8. For such other relief as the Council deems just and proper.
10
____________________________
11 Corinna Cohn
cohnc@unr.nevada.edu
12 Petitioner
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