Assemblyman Steven Brooks was unceremoniously – and perhaps unconstitutionally — stripped of his powers tonight, after a new committee approved a set of rules that granted broad powers to its chairman.
The Assembly Select Committee on the Assembly unanimously adopted rules that allow Chairman William Horne ”…if necessary to preserve order and protect the integrity and 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, with pay and without loss of any benefits, during the pendency of the committee’s investigation of the member.
“Such an order may include, without limitation, 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.”
According to the Review-Journal‘s Sean Whaley, Horne will send Brooks a letter informing him of the restrictions.
Now, I’d be the first to argue Brooks’s increasingly erratic behavior — culminating in Sunday’s arrest on domestic violence and resisting-an-officer charges, and today’s 8NewsNow I-team report in which Brooks threatened to “shoot back” at police — is proof that Brooks is mentally unfit to serve his constituents. And I’d also argue that the Assembly is constitutionally empowered to punish its members, up to and including expulsion from the body under Article 4, Section 6 of the state constitution. (Expulsion requires a two-thirds vote of all its elected members.)
But can 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? That’s much less clear.
In fact, under the famous 1969 case of Powell v. McCormack, the U.S. Supreme Court ruled the House of Representatives acted unconstitutionally when it barred former Rep. Adam Clayton Powell Jr., D-N.Y., from taking his seat after he’d been duly elected, but before he was sworn in. The ruling said Congress — acting on language almost identical to that of Nevada’s constitution — could expel Powell, but could not legally prevent him from taking his seat once he’d won an election.
In Nevada, the case is even more acute, since Brooks was considered “elected” the day after the Nov. 6 election. He was sworn in Feb. 4, and has cast votes on the Assembly floor. But now, an Assembly committee — acting under rules unanimously approved by the select committee tonight — has imposed a discipline on Brooks before it has conducted a single hearing, heard from a single witness or examined a single document.
And while the Assembly does have the constitutional right to adopt “rules for its proceedings,” those rules have to be congruent with the rest of the constitution. And, no matter how bizarre or even dangerous Brooks’s behavior is, is seems as if depriving him of core legislative powers such as the ability to vote and represent his constituents is tantamount to undoing an election by fiat. (You can read the rules for yourself here: h0211_howi.)
Now, it’s unlikely Brooks will sue to regain his powers of office, or that such a lawsuit (relying in large part, no doubt, on the Powell decision) would be resolved before the select committee finishes its work. And it’s also clear the committee acted out of concern for the general welfare of elected officials and others in the legislative building, to whom Brooks could very possibly represent a threat. But if Brooks were to challenge the rule, he’d have a pretty good case to make.
Horne — himself an attorney in private practice and a graduate of UNLV’s Boyd Law School — said he reviewed the rules with the Legislative Counsel Bureau’s legal division and is comfortable with the proceedings. (Since there has never been a successful expulsion of a legislator in state history, there are no rules or precedents to guide the committee.)
“We’re taking tremendous pains to do it the right way,” Horne said. “The one thing you won’t be able to say is that we did nothing.”
Horne noted that Brooks’s presence in the legislative building created some chaos during the Legislature’s first week: He was accompanied by a Legislative Police officer wherever he went in the building, and was usually trailed by a throng of reporters, photographers and television cameras. Some members of legislative staff complained about the work environment because of the Brooks sideshow.
“That’s a tremendous amount of resources being devoted to one lawmaker,” he said. “The legislative process is hard enough in 120 days without things like this happening.”
“At the end of the day, Steven Brooks is not bigger than the legislative process,” Horne added.
Meanwhile, the committee’s work may not be limited to Brooks. Assemblyman Lynn Stewart, R-Henderson, asked Horne if members could bring up cases in which other members “…may be allegedly in violation of their ability to serve, their qualification to serve, such as Mr. [Andrew] Martin?”
Martin, of course, is the successful Assembly candidate whom a judge ruled on the eve of the election did not live in his district, and thus was ineligible as a candidate. But Martin won the election notwithstanding the ruling, and the Assembly seated him on Feb. 4 anyway. (He was even, in a grotesque disrespect for state law, appointed to the temporary committee on credentials, the ceremonial panel that decides the qualifications of newly elected members.)
Horne replied that the rules allow anyone to submit complaints to the committee, although he didn’t point out that a separate rule allows an independent counsel 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.”
It’s unclear if Republicans actually intend to challenge Martin’s ability to serve, or if they simply want to keep the issue alive or preserve their rights to file a complaint in the future.