I’ve been saying for weeks now that if Assemblyman Steven Brooks and his lawyer, Mitchell Posin, demanded that Brooks be allowed to return to work in the legislative building in Carson City, they would likely prevail on the merits. Today, Posin filed papers with the Nevada Supreme Court to do just that.
The relevant points, from the Review-Journal‘s Sean Whaley and Mike Blasky:
Las Vegas attorney Mitchell Posin said a Feb.11 letter from Assembly Majority Leader William Horne, D-Las Vegas, placing Brooks on leave with pay pending the outcome of an Assembly investigation into whether he is fit for office is not legal. The letter also banned Brooks from the Legislative Building.
“The Legislature does not have the constitutional authority to put him on administrative leave,” Posin said. “The Legislature is not his employer. He is an elected official.”
Posin, who filed the writ late Monday, has asked the court to act within 14 days.
“I’m not sure how they will proceed,” he said. “This is not an everyday kind of occurrence. But I’ve asked that it be heard on an expedited basis. Every day that goes by is a day he is not doing his work in the Legislature. He should be able to do his job. He was elected by the voters, not hired by the Legislature.”
Posin is precisely right, as I argued in a blog written at the time Horne imposed the order. While the Assembly has the absolute right to expel Brooks from the body, and to determine what standards it will apply in deciding whether or not to expel him, it cannot act to bar a duly-elected lawmaker from doing his duty prior to such an expulsion. In fact, by barring Brooks from government buildings and “…otherwise performing any legislative activities or acting as a legislator during the pendency of the [Assembly Select Committee on the Assembly] committee’s investigation of the member,” the committee has effectively imposed the punishment of expulsion prior to a single hearing.
Now, some will object that Brooks — who was arrested once in possession of a .357-caliber Magnum handgun, a second time in which he allegedly tried to grab a Metro Police officer’s weapon and was recently denied the opportunity to purchase a hunting rifle — is a danger to people in the legislative building. In fact, a state OSHA complaint was filed over Brooks’s presence in the building at the start of the session. And the committee’s letter to Brooks cites the disruption that occurred because a Legislative Police officer had to follow him everywhere he went in the legislative building.
But the fact that Brooks was allowed in the building at the start of the session, that he behaved appropriately when he was in the facility, and that the Legislative Police were able to keep order augurs in favor of allowing him to return. Essentially, the Legislative Counsel Bureau has proven that it can effectively balance the interests of public safety with Brooks’s interest (and obligation) in performing his legislative duties. Yes, there was a disruption caused by a media throng that followed Brooks everywhere, but in a contest between the slight inconvenience of a horde of cameras and reporters in a hallway and the constitutional right and obligation of a lawmaker to fulfill his constitutional duty, the constitution trumps. Or at least it should.
Nobody is saying that reasonable precautions may be taken. For example, it would not be out of bounds for Brooks to be instructed to report to a particular entrance to the legislative building at a given time every day, there to be searched for weapons. He could be told he will be accompanied by a Legislative Police officer everywhere he goes inside the building, and that if he creates a disturbance or commits any crime — including an attempt to possess a weapon in the building — he will be arrested. Brooks’s bizarre conduct and frequent encounters with police justify those precautions.
But the bottom line is, it’s entirely possible — if not entirely easy — to accommodate Brooks in the building until the standing committee holds hearings on whether to expel him or not. When those hearings are finished, if the Assembly believes Brooks’s conduct rises to the level that warrants expulsion, his fellows can vote (in a two-thirds supermajority) to strip him of his title and powers of office. Then, they may feel free to banish him from the building. But that cannot happen before hearings and before that all-important vote, because whatever else we may call Brooks — and the list is long and growing all the time — we must still call him “assemblyman.”
UPDATE: Here’s the writ of mandamus petition filed by attorney Mitchell Posin with the Nevada Supreme Court on Monday: 62734+petition.