A bad precedent
The request from the Nevada Supreme Court Wednesday asking the Legislative Counsel Bureau to answer a writ of mandamus filed by Steven Brooks may be an ominous sign for the Assembly. If the case actually comes before the court, the Legislature will have a difficult hill to climb.
That’s because the rules of the oddly named Assembly Select Committee on the Assembly — which provide that the chairman may “if necessary to preserve order and protect the decorum of the Legislature and the legislative process, issue an order placing a member who is the subject of the committee’s investigation on administrative leave” — contain serious infirmities.
The rules allow the committee to “prohibit the member from entering the legislative buildings or otherwise performing any legislative activities or acting as a legislator” while under investigation.
In other words, the chairman with the stroke of a pen may undo an election by depriving a duly elected member of the Assembly the right to vote and otherwise exercise the powers and duties of an office conferred upon him by the voters.
The problem is, no law allows the chairman to do this. The only people who can are the voters themselves, by ejecting an official from office, or the full Assembly, and then only upon a two-thirds vote of expulsion. That may eventually happen here — and thus render the Supreme Court case moot— but it has not happened yet.
That’s why Brooks’ lawyer — Mitchell Posin — has asked the Nevada Supreme Court to swiftly rule that Brooks be allowed to resume his duties. And while Brooks has given all of Nevada ample reason to doubt his mental stability (he’s been arrested twice and once confined to a facility to treat mental illness), he is still an elected official. And during the brief period of time he was allowed to enter the legislative building, his behavior raised no specter of danger.
The Assembly will undoubtedly argue Brooks’s de facto expulsion was necessary because he poses a potential danger to others. (A workplace safety complaint was actually filed with the state’s OSHA office. But in reply, the director of the Legislative Counsel Bureau tellingly wrote “it is important to recognize that Assemblyman Brooks is an elected official and not an employee of the LCB or of the Nevada Assembly. Therefore, he cannot be fired, suspended or otherwise disciplined in the same manner as an employee.” Indeed.)
But the Assembly has already proven — by assigning an armed Legislative Police officer to follow Brooks while he was in the building during the first week of the legislative session — that it can accommodate both workplace safety and the constitutional prerogatives of elected officials.
Mere inconvenience is an insufficient reason to ignore the constitution.
