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1/22/2013 9:48 PM
By Sean W. McDonald, Esq.*
A Nevada assemblyman’s recent conduct has the potential to place the Nevada Assembly onto unsure ground, considering for the first time in its history whether it should expel a member for disorderly conduct. This Note will briefly examine the constitutional provisions implicated in this situation and relevant judicial decisions. News media accounts report that Assemblyman Steven Brooks, a Democrat representing Assembly District 17 in North Las Vegas, was arrested January 20, 2013, on suspicion of threatening fellow member of the Assembly and presumed Speaker-designate Marilyn Kirkpatrick.1 Reports indicate that Brooks allegedly had been telling fellow legislators that Kirkpatrick’s “first day as speaker would be her last.”2 After reporting this to police, Brooks was arrested by North Las Vegas police on a felony charge of intimidating a public
Associate Attorney, The Urban Law Firm, Las Vegas. J.D. cum laude, William S. Boyd School of Law, University of Nevada, Las Vegas, 2012; B.A. cum laude, University of Nevada, Reno, 2008. Mr. McDonald has served two sessions at the Nevada Legislature, as committee staff in the Nevada Assembly in 2009 and as a legal extern and lobbyist with Snell & Wilmer in 2011. During law school, Mr. McDonald served on the Nevada Law Journal and wrote a Note, The Unconstitutional Session Between Sessions: An Examination of Post Regular Session Legislative Activities in Nevada (unpublished), which was accepted in partial fulfillment of the J.D. degree requirements. Mr. McDonald is an avid follower of legislative activities in Nevada and of law relating to legislative practice and procedure. 1 See David McGrath Schwartz, Assemblyman in jail, accused of threatening fellow lawmaker, LAS VEGAS SUN, Jan. 20, 2013, 10:15 a.m., updated 3:03 p.m., http://www.lasvegassun.com/news/2013/jan/20/assemblyman-jail-accused-threateningfellow-lawmak/ [hereinafter Schwartz I]; Laura Myers, Sean Whaley & Antonio Planas, Nevada legislator Brooks arrested, accused of threatening Assembly speaker, LAS VEGAS REV.J., Jan. 20, 2013, 10:14 a.m., updated Jan. 21, 2013, 10:35 a.m., http://www.lvrj.com/news/nevada-assemblyman-brooks-arrested-charged-with-threatagainst-assembly-speaker-187629061.html [hereinafter Myers I]. Kirkpatrick is the presumed Speaker-designate because she will not be formally elected Speaker of the Assembly until February 4, 2013, when the Assembly convenes, although her selection as Speaker is all but assured since the Democratic caucus, which holds a strong majority in the Assembly, has already announced her selection. 2 Myers I; David McGrath Schwartz, Assemblyman arrested in threat on lawmaker says he’ll return to Carson City, LAS VEGAS SUN, Jan 21, 2013, 12:55 p.m., updated 4:16 p.m., http://www.lasvegassun.com/news/2013/jan/21/assemblyman-arrested-threat-lawmaker-freebail/ [hereinafter Schwartz II].
7 [The facts surrounding this incident are in constant flux. CONST.” POLITICAL HISTORY OF NEVADA 234. expel a member. 6 See Schwartz I. police reported finding a loaded firearm in Brooks’ car. . Accordingly. 5 Steve Sebelius. . this draft Note will be updated occasionally as time permits with the latest developments. 21. and with the concurrence of two thirds of all the members elected. Nevada legislative counsel checking on seating Assemblyman Brooks. despite already garnering the support of the Democratic caucus. Schwartz II. The Nevada Constitution provides that “Each House shall judge of the qualifications. Myers I. 11th ed.reviewjournal..us/Division/Research/Publications/NVLegislators/NVLegislators..pdf and Renee Parker and Steve George. was upset that Kirkpatrick passed him over for appointment to chair the Assembly Ways and Means Committee.. Jan.m. Twitter.3 Upon making the arrest.com/news/assemblyman-released-from-jail-187759091.com. LAS VEGAS REV. https://twitter. .300. Myers I.-J. See Schwartz I. “I’m innocent. Nevada Legislators 1861 – 2011. for the terms “expel.”). Jan.” adding. updated 6:19 p. .html (“While Legislative Counsel Brenda Erdoes said she has not received any requests from legislators on how to handle the allegations against Brooks. 2013.8 that option is likely unavailing. Political History of Nevada specifically reports that “the body has not removed any members. 10:22 a. POLITICAL HISTORY OF NEVADA.10 and in only one instance has the Nevada 3 4 See Schwartz I. 21. XX:nnn officer. 8 See supra note 7 and accompanying text. determine the rules of its proceedings and may punish its members for disorderly conduct.”9 But neither house of the Nevada Legislature has ever exercised its power to expel a member. 2006) available online at http://nsla.6 Legislative lawyers are apparently looking into legal options to prevent Brooks from taking his seat on February 4. elections and returns of its own members.STEVE BROOKS POST FORMATTED 1/22/2013 9:48 PM 2 [Vol.nv. she said she is examining legislative rules on whether a member can be blocked from taking office.” and for references to the seating of legislators. when the legislative session convenes. Slash/Politics. § 6. 2013.”5 The reports also indicate that Brooks had been exhibiting erratic behavior for several weeks.state.nevadaculture.org/dmdocuments/nvpoliticalhistory2006. April 2011. http://slashpolitics.] I.” “expul.. which has a strong majority in the Assembly.-J. Schwartz II. 10 Based on a search of Nevada Legislature membership records primarily Nevada Legislative Counsel Bureau.com.4 On Monday.lvrj. Jon Ralston.com/RalstonReports/status/293473586130337792.com/2013/01/21/brooks-im-innocent/. MAY THE NEVADA ASSEMBLY REFUSE TO SEAT BROOKS? Although legislative lawyers are reportedly investigating whether the Assembly can refuse to seat Brooks when the legislative session convenes. IV. art. Schwartz II. Las Vegas Rev. available online at http://leg.. Myers I. Brooks: ‘I’m innocent’.pdf. 9 NEV. “Marilyn wants to kill me. http://www. 7 See Ed Vogel. Brooks separately contacted two Las Vegas political journalists and said to them. and that he was trying to attempt to prevent Kirkpatrick from becoming Speaker of the Assembly. there is no record of the Legislature ever having expelled a member. Research Division. Eds.m. see also NRS 199. 2013. January 21.
See id.”15 With respect to the third area. (2) infringed upon personal constitutional rights. at 755-56 (footnotes omitted). at 756 (citing Powell v. 12 395 U. 16 Id. 2013. In this case. Supreme Court decision Powell v. In Heller v. that option is probably foreclosed by U. an action to oust or exclude state executive branch employees from the Nevada Legislature. as required by article IV. Constitutional Law § 201 (1984)). such as election contests.S. and returns of its members in three areas: “where the legislature has (1) devised a role for the courts by statute. . 13 93 P. that the case was not justiciable under the Separation of Powers clause of the Nevada Constitution. there is only one instance where the Legislature revoked the seating of a person in favor of another in an election challenge case.”14 The Court noted that courts can intrude into the Legislature’s otherwise exclusive power to judge the qualifications. On only one occasion has the Nevada Senate exercised its constitutional power under article IV.3d 746 (2004). With respect to refusing to seat Brooks when the 77th regular session of the Legislature convenes on February 4. McCormack. There. except for a few instances of censure. but there are a couple of cases that touch the constitutional provision at issue. and—of most interest for the purposes of this post—that the power of the legislature to admit or expel a member is almost unreviewable in the courts.11 Thus. On a few occasions a seat has been declared vacant for nonresidency of the member.S. that the Secretary of State sued the wrong party in mandamus. or (3) imposed extra-constitutional qualifications. The author is aware of no instance in which the Legislature considered disciplinary measures against a member of either house. 486 (1969)). Id. there is some federal and Nevada case law that is instructive and persuasive. i. the Secretary of State brought an action to oust or exclude members of the Legislature who also served in various capacities in the executive branch of government. but not when Congress imposes extra-constitutional qualifications. 395 U. McCormack. The Court found that the Secretary of State lacked standing to bring a mandamus action.J. at 753 (citing 16 C. there is little precedent from which to draw to guide legislative practice in this case.12 There is no Nevada Supreme Court precedent directly addressing the extent to which the Legislature may “judge” the qualifications. the Nevada Supreme Court held that the Court did not have jurisdiction to consider. elections. elections.S. 15 Id. Legislature. 32 (same). 486 (1969). to remove someone and to seat another person. the Court held that “Congress is the sole judge of whether an elected official meets qualifications enumerated in the Constitution.”16 Indeed. nor did Secretary of State have standing to bring. McCormack. at 248 (reporting that a member was unseated in favor of another in an election challenge). and returns of its members. Nevada Legislators at 18.S.e. in violation of the Separation of Powers clause of the Nevada Constitution. the member did not reside in the district from which he was elected. the Court cited to Powell v.STEVE BROOKS POST FORMATTED 1/22/2013 9:48 PM January 2013] UNCHARTED DISCIPLINE 3 Senate reseated one person in place of another in an election challenge.13 The Court found that the Legislature’s “decision to admit or expel a member is almost unreviewable in the courts. However. sections 3 and 4 of the Nevada Constitution. 14 Id. 11 See supra note 10. section 6.
section 5 of the Nevada Constitution. neither the Nevada Senate nor Assembly has ever expelled a member. but did expressly state that voting is a core legislative function. there is some language in Nevada Supreme Court decisions that could prove troublesome for the Assembly should it ultimately decide to expel Brooks from office. at 1105-06 & n. 17 The constitutional qualifications to hold the office of member of the Assembly are set out in article IV. if the Assembly were to refuse to seat Brooks.23 If the answer is no. Mason’s is the parliamentary manual of the Nevada Assembly. in Commission on Ethics v. and from the practices and precedents of other legislative bodies. and with the concurrence of two thirds of all the members elected. CONST. the Court reasoned that the Legislature’s power to discipline its members for disorderly conduct “applies to conduct undertaken in the course of engaging in core legislative function activities. it will have to draw from parliamentary practice manuals. Hardy. Thus.21 found that the statutory scheme delegating power to the Ethics Commission to discipline legislators for ethical violations related to their conduct in the legislature violated the Separations of Powers clause of the Nevada Constitution and exceeded the Legislature’s authority to delegate its power. 19 MASON’S MANUAL OF LEGISLATIVE PROCEDURE (West 2010). In short.STEVE BROOKS POST FORMATTED 1/22/2013 9:48 PM 4 [Vol. available online at http://leg. at 1105. MAY THE NEVADA ASSEMBLY EXPEL BROOKS AFTER HE IS SEATED? As previously noted. Thus. The Nevada Constitution grants to each house of the Legislature the power to “determine the rules of its proceedings and may punish its members for disorderly conduct. 22 Id. it would immediately run into Powell. That said. art. expel a member.state. 8. In arriving at that decision. . 21 212 P. here. 20 NEV.3d 1090 (2009) (per curiam). Should the Nevada Assembly undertake expulsion proceedings. 23 The Court did not expressly define core legislative function. such as Mason’s Manual of Legislative Procedure.nv.pdf. and at NRS 218A. IV.19 from judicial decisions of other jurisdictions. there is no judicial or legislative precedent directly on point from which to draw guidance. See Rule 100. Id. the member must be 21 years of age and reside in the district from which the member was elected. then Brooks can be expelled only if his conduct was undertaken while engaging in a core legislative function. which the Nevada Supreme Court cited approvingly in Heller.17 the Assembly’s action would not likely withstand judicial review.us/Session/76th2011/SR_Assembly. 18 See supra note 10. it will be charting new territory for the Nevada Legislature.200. XX:nnn Accordingly.. § 6. 2011. if the basis to refuse to seat Brooks is not based on the constitutional qualifications to hold office.”22 This raises a critical issue for the Brooks situation: does the power to discipline extend only to core legislative functions? If the answer is yes. 76th Leg.”20 The Nevada Supreme Court.18 Thus. II. Assembly Standing Rules.
STEVE BROOKS POST FORMATTED 1/22/2013 9:48 PM January 2013] UNCHARTED DISCIPLINE 5 then the Legislature can proceed unfettered by any judicial decision.] . be a case to be made that “disorderly conduct” only includes behavior committed in the presence of the legislative body and does not include conduct that occurs outside of the Legislature.24 Because the Hardy case was decided in the special context of a statutory scheme that delegated certain disciplinary powers to an executive branch agency and not solely single-house conduct. Hardy does not limit the power of the Legislature to discipline for disorderly conduct to core legislative functions only. and that decision would almost certainly be unreviewable in the courts under Heller. the Legislature may delegate the power to discipline with respect to conduct related to noncore legislative functions. 26 See supra n.”25 Thus. “Ralston Reports. at 1106 n. [And as of the posting of this draft Note. should the Nevada Assembly choose to begin proceedings against Assemblyman Brooks. of course. the press conference has been cancelled. That said. CONCLUSION This Note takes no position whether the members of the Assembly should discipline Assemblyman Brooks. in which the Court compares the power of the Legislature to delegate its disciplinary powers over core and noncore legislative functions. Twitter. 24 There will still. the Hardy decision itself is best read as not limiting the legislature’s power to discipline to instances in which core legislative functions are implicated. it is up to each house to decide for itself what qualifies as disorderly conduct. but providing no further guidance). The best evidence of this intent is found in a footnote. Assemblyman Brooks is scheduled to hold a news conference tomorrow (January 21) at his Carson City legislative office. Either way. https://twitter.com.27 It is possible that Brooks’ words have been taken out of context and that Brooks’ only threat was a political one.26 III. as of this writing. 27 Indeed. “In contrast.” See Jon Ralston. not to Speaker-designate Kirkpatrick personally. but that argument is probably without merit. a definition of that noncore legislative functions is contemplated even less than the Court articulated a clear definition of core legislative functions. and judicial authority from other jurisdictions. All of the facts are not yet known. 9. it will have ample constitutional support to steady its tentative steps into unchartered disciplinary territory for the Nevada Legislature. Aside from ample legislative practice. and to appear on Jon Ralston’s television program. the Court implicitly recognized that the Legislature’s power to discipline extends to noncore legislative functions. Because each house of the Legislature has the constitutional prerogative to discipline its members for disorderly conduct. precedent.com/RalstonReports/status/293513487131475969 & https://twitter.com/RalstonReports/status/293555039035875328. 25 Id. the most probable result is a court would find the answer to the key question to be: no. 23 (defining core legislative function as including voting.