Las Vegas Review-Journal - Steve Sebelius Slash Politics

Editor’s note: This post has been altered from its original version to correct an error. 

CARSON CITY — It was a remarkable scene in the capital today — a trio of Clark County commissioners offering emotional testimony against a bill sought by the very government they run.

Tom Collins, Chris Giunchigliani and Lawrence Weekly all showed up at the Grant Sawyer state office building in Las Vegas to testify against Assembly Bill 484, a bill that seeks to change the way University Medical Center is governed. The bill would put the hospital under the control of a quasi-private board of trustees, allowing it to meet behind closed doors on competitive issues but retaining its public nature for tax and other purposes.

The Clark County Commission voted 4-3 to seek the legislation, with Weekly, Giunchigliani and Collins voting no. Weekly is chairman of the current UMC board, and Giunchigliani vice chairman.

The county trio said the governance issue was a distraction from the real problem, which is caring for people without health care insurance.

“If more folks had insurance, we’d have less of a problem at UMC,” Collins declared. “The governance [issue] is just trying to pass the buck in my opinion.”

Weekly, who said he was born at UMC, denounced people testifying on the bill who had no connection to UMC, an apparent reference to the Las Vegas Chamber of Commerce. He also questioned the motives behind the measure. “The intent of this legislation here is not genuine. It’s really not genuine.”

Giunchigliani traced the history of UMC governance, noting that the county was put in charge in 1975 after complaints that the previous, mostly private board’s management had led to financial problems at the hospital. She attributed the pus to change governance at the hospital to former Commission Chairman Rory Reid‘s 2010 campaign for governor.

“A political decision was made because somebody was running for governor to bring up the issue of governance,” Giunchigliani said.

She said the real issue is money, and suggested the county implement a taxing district to offset deficits at UMC. “We should have the courage to do that as politicians if that’s what we believe is the real issue,” she said.

In addition to the commissioners, the bill drew opposition from Danny Thompson, head of the AFL-CIO of Nevada, the Service Employees International Union and several UMC employees concerned about how they’ll be treated under the new governance. It was supported by Brian Brannman, the hospital’s CEO, who has said the hospital needs the flexibility sought in the bill to become more competitive and get a higher mix of paying patients into UMC.

The bill must come back before the Health and Human Services Committee by Friday in order to beat a deadline, or it will be considered dead for the rest of the session.

CARSON CITY — The Assembly Government Affairs Committee today passed a bill that would require state elected officials to live in the districts they’re seeking to represent. Although that requirement currently exists in state law, it’s been ignored by many officials over the years, most recently in 2012, when a judge found Assembly candidate Andrew Martin didn’t live in his district.

But that ruling came on the eve of the election, which Martin won. He was seated by the Assembly notwithstanding the judge’s ruling.

Assembly Speaker Marilyn Kirkpatrick, D-North Las Vegas and Assembly Minority Leader Pat Hickey, R-Reno, introduced AB 407 to deal with similar situations in the future. The bill would:

• Define a person’s residence as “…that place where the person has been actually, physically and corporeally within the State or county or district, as the case may be, during all the period for which residence is claimed by the person.”
• Prevent a District Court from ruling on residency complaints for the general election after the fourth Friday in June of an election year, which is the deadline for making changes to the general-election ballot.
• Establish that the only way to remove a lawmaker who allegedly does not live in his or her district is by expulsion from the Assembly or Senate under Article 4, Section 6 of the Nevada Constitution.

The bill also carries an amendment that would allow losers of elections to contest  a victor’s residency by a complaint to the secretary of state. If a challenge is brought in good faith, the challenger would not be liable for fees and costs.

Clearly, Nevada needs this law to prevent a recurrence of the Martin situation, although his case is only the latest in a long string of lawmakers who have maintained homes outside their districts. But expulsion from the Legislature is a rare and — until this year — unprecedented act. In fact, most people are unaware that both the Assembly and Senate rules call for ethics committees to police the behavior of members, committees that hardly ever meet and have never been known to punish anyone for anything in recent memory.

Not only that, but the Assembly had full knowledge of the controversy surrounding Martin’s residency, and yet chose to seat him anyway, even though members were fully empowered to refuse to seat him because of the residency question. In fact, adding insult to injury, Martin was selected to be on the temporary committee to examine the credentials of would-be lawmakers! But we’re to trust that those same lawmakers will respond appropriately to residency challenges in the future and even expel those they find wanting?

On the other hand, since the houses of the Legislature have the constitutional power to “judge of the qualifications, elections and returns of its own members” (Nevada Constitution, Article 4, Section 6), the matter of deciding a challenge to a person who has been duly elected more properly rests there than with a District Court. However, no provision of AB 407 would remove District Court authority to decide on residency lawsuits filed before the ballot-change deadline. (In fact, courts have intervened to remove candidates from the ballot for failing to live within their districts, and they would presumably retain that authority.)

State Sen. Ben Kieckhefer, R-Reno, has a bill aimed at preventing mentally ill people from buying guns.

CARSON CITY — Clearly, state Sen. Ben Kieckhefer was unsettled about bringing a gun control bill to the Senate.

The Reno Republican said as much as he introduced Senate Bill 277, which would ban people from purchasing firearms if they become the subject of a petition to be committed for mental illness.

“I’ve grappled with this one for months,” Kieckhefer told the Senate Health and Human Services Committee Tuesday afternoon. “I’m not entirely comfortable with it.”

It was quickly evident why: Although Kieckhefer had met with opponents of the bill, he had failed to mollify them. The National Rifle Association, the Nevada Firearms Coalition, and the Washoe County Public Defenders office all came out against the bill, and mostly for the same reason: They claim it truncates due process for gun owners, stripping them of their rights without due process based only on the accusation of being mentally ill.

But for Kieckhefer, the current system contains a significant gap. Sure, once a court rules somebody is mentally unfit, they lose their rights to possess or purchase a firearm. But what happens before that, when a person whom police or psychiatrists believe is mentally ill, even a danger to themselves or others, comes into the system? Doctors can petition the courts for a hearing on a person’s mental health, and it’s at this point in the process that Kieckhefer wants to suspend their gun rights by entering their names into a national database of prohibited purchasers.

To buttress his case, he noted that the vast majority of involuntary commitment petitions are unsuccessful in both Clark and Washoe counties. “Just because a petition isn’t granted doesn’t mean it’s not warranted,” Kieckhefer said.

Although lobbyists for the Washoe County Sheriff’s Department and the Nevada Sheriffs and Chiefs Association supported the bill, it was opposed most directly by Chris Frey, representing the Washoe County public defender’s office. Frey says under existing law, a person accused of being mentally ill is given an attorney and a trial to dispute the charges against him. Only after a judge rules are his rights to own or purchase firearms suspended.

Under SB 277, Frey said, a person would have no mechanism to challenge a petition before it’s brought, no access to counsel to assist and no trial to challenge the assertions of the state. (Kieckhefer did bring an amendment that allows people temporarily prohibited from buying guns the option to petition a court to have their names removed from the database, however.) Frey said the bill essentially imposes the most egregious outcome — loss of a fundamental constitutional right — before the proceedings to prove that a person should lose that right.

But committee chairman state Sen. Justin Jones interrupted Frey to point out that the most egregious outcome would be for a mentally ill person to kill someone before the system had time to act. An exceedingly good point.

Moreover, Jones said at the start of the hearing, current law allows for involuntarily holding people suspected of mental illness for at least 72 hours, but in some cases longer. If a person can be deprived of the fundamental right of liberty prior to being adjudicated mentally unfit, why could they not lose their rights to purchase firearms in the same circumstances?

That didn’t persuade opponents of the bill, however, who repeatedly cited the loss of due process in Kieckhefer’s approach.

“This is a difficult topic for a variety of reasons,” he said at the end of the hearing.

The bill will return to the committee on Thursday for a work session. It must pass by Friday or it will be considered dead for the rest of the session.

CARSON CITY -- When it comes to medical marijuana, there are myriad legal switchbacks. The most obvious is that it’s legal to use the drug and it’s legal to grow it, but it’s not legal to buy it or even buy the seeds that eventually turn into the plants that you’re allowed to have (with strict limits).

But how about this lesser-known Catch-22: You can legally smoke medical marijuana, but you may still be prosecuted for driving under the influence if you violate a separate law that sets bloodstream levels of prohibited substances. Under that law, you can be arrested if you have 2 nanograms or more of marijuana (or 5 nanograms or more of a marijuana metabolite) per mililiter of blood, regardless of whether you are a legally authorized medical marijuana patient.

That’s why Assembly Majority Leader William Horne brought Assembly Bill 351, which was debated this afternoon in the Assembly Health & Human Services Committee. Under Horne’s bill, a person with a medical marijuana authorization card could not be prosecuted simply based upon the presence in his or her blood of marijuana, but could still be prosecuted if he or she drove under the influence of marijuana.

What’s the difference? Under current law, you are considered de facto “impaired” if you have a blood-alcohol level of .08, for example, or the above-mentioned blood levels of marijuana or its metabolites. But unlike the alcohol standard, the marijuana standard is more arbitrary and may not be an indication of a person’s actual impairment, proponents of the bill said. Moreover, medical marijuana patients will naturally show the presence of marijuana in their blood, albeit marijuana authorized by a physician.

Under the bill, prosecutors could not simply introduce a blood test and prove a de facto impairment case. Instead, they’d have a more difficult job of proving impairment based on the totality of the evidence, including testimony from officers, the results of sobriety tests and other factors.

“I want to make clear it is still against the law to drive under the influence of marijuana,” Horne said at today’s hearing. “Medical marijuana should not be treated any differently than users of any other prescribed drug.”

While public defenders in the state supported the idea, police and prosecutors opposed it.

Brian Rutledge, a chief deputy district attorney in Clark County and head of the vehicle crimes unit, says marijuana is as prevalent in DUI-related crashes as alcohol. A horrific crash at a bus stop in September involved marijuana, as did a crash last week at the popular Egg & I restaurant on Sahara Avenue, Rutledge said. And the death of former Las Vegas Sun Vice President and Associate Editor Sandy Thompson in  2002 was caused by a driver under the influence of marijuana.

“It’s just as prevalent as alcohol in the felony cases,” Rutledge said.

Prosecutors argued that excepting medical marijuana card holders from per se DUI standards for marijuana would create equal protection problems in enforcing all marijuana-related DUI laws, and may led to the standard being stricken by courts entirely.

But committee members repeatedly asked about the marijuana-blood standard, and whether it relates to impairment. Although none mentioned the infamous case of Jessica Williams, they could have. Williams in 2001 smoked marijuana at Valley of Fire, and hours later fell asleep at the wheel and ran down six teenagers who were performing community service freeway cleanup. Although a jury found she was not under the influence of marijuana when the crash occurred, she drew nearly 50 years in prison, in part because she had a prohibited substance in her blood.

Police lobbyists said they would not request a blood test for marijuana or other drugs until they first established a suspicion of impairment using standard field-sobriety tests or observing obvious signs of intoxication.

Horne wondered, however, if the marijuana-related crashes Rutledge mentioned involved medical marijuana users.

He said the majority of the states that allow medical marijuana require DUI cases to be established based on the totality of the evidence, instead of upon a set standard. And since the voters amended the constitution to allow for medical marijuana, it’s unfair to patients to maintain a DUI standard that might see them locked up for using a drug authorized by law, Horne said.

The bill faces a Friday deadline to pass from the committee or its considered dead for the remainder of the session.

Those who know me personally realize that I would never, ever stand for the objectification of any person, especially women. But if I did, it would have to be funny.

Anyway, I’ve been bothered by a grievous insult to the state of the Nevada delivered — once more! — by President Barack Obama. Why he hates Nevada and its residents so much is beyond me, but he sure does.

California Attorney General Kamala Harris, whom President Obama has dubbed "by far the best-looking attorney general in the country."

The latest: The president in remarks delivered in California said, among other things, the Golden State has “…by far the best looking attorney general in the country.” Here’s his full statement, as quoted by the Washington Post:

“You have to be careful to, first of all, say she is brilliant and she is dedicated and she is tough, and she is exactly what you’d want in anybody who is administering the law, and making sure that everybody is getting a fair shake. She also happens to be, by far, the best looking attorney general in the country.”

Obama later apologized for his remark.

Now, I have much respect for the president, and as a native of California, I’m normally inclined to say the Golden State has the best of everything — beaches, mountains, wine country, farm country, urban life, craft-beer brewing, hamburgers (home of In-N-Out Burger — recognize!) rural life and even marijuana production (from what I’ve heard). As for the ladies, well, like the Beach Boys, I wish they all could be California girls, but like Katy Perry, I must agree that California girls are both unforgettable and undeniable.

However, on this issue, I must stand up for my adopted home state of Nevada, and it’s own attorney general, Catherine Cortez Masto. Like President Obama, I will first acknowledge that Cortez Masto is a top-notch lawyer, dedicated and tough in her own right, always looking out for seniors, for victims of foreclosure fraud and vigorously prosecuting those who seek to prey on others. She’s a credit to our state and we’re lucky to have her.

Nevada Attorney General Catherine Cortez Masto

Having said that, Cortez Masto could easily give Harris a run for her money in the Best Looking Attorney General in the Country department. And I’m sure — if President Obama had been making remarks in Nevada — he’d agree with me. (It’s clear, however, once first lady Michelle Obama hears about this, he won’t be saying anything of the like ever again.)

Of course, it’s totally wrong and sexist to judge the top state legal officers by their looks alone. Both these women worked hard, studied hard, graduated from law school and then voluntarily underwent the unforgiving rigors of a political campaign, all to gain an office from which they might help people and make the lives of residents in their respective states better. They totally deserve our respect.

So, just to show I’m not at all sexist, let me do some other Nevada-California comparisons, to see just where we stack up against our neighbor.

California Gov. Jerry Brown

Nevada Gov. Brian Sandoval -- better looking than his California counterpart.

First up: Governor. California is, once again, governed by Jerry Brown, who first held the office back in 1974 and served until 1982. I’m all for the bald-is beautiful thing, obviously, but I think it’s clear that our own Gov. Brian Sandoval wins this contest.

Then again, Sandoval can’t say he once dated singer Linda Ronstadt, either, so there’s a little consolation for Brown. And Brown also has that sweet smoking tent on the Capitol grounds that was created by former Gov. Arnold Schwarzenegger. Sandoval has no such getaway.

California Lt. Gov. Gavin Newsom

Next up, lieutenant governor. Here, Nevada may be in a bit of trouble, pitting Nevada’s own Brian Krolicki against ex-San Francisco mayor and current incumbent lieutenant governor Gavin Newsom. Krolicki has made his name for his Improv-style presiding over the Nevada state Senate, injecting humor into a process that desperately needs it. He was also Republican presidential nominee Mitt Romney‘s chief surrogate in Nevada, dueling with the liberal media frequently on the campaign trail.

Nevada Lt. Gov. Brian Krolicki

Newsom has grabbed headlines for favoring gay marriage and for having an affair with the wife of his former deputy chief of staff and campaign manager. Krolicki has stayed out of the headlines on such controversial issues, and is best known for his pursuit of bringing the winter Olympics to his beloved Lake Tahoe.

California Secretary of State Debra Bowen

Continuing through the constitutional officers, we pit California Secretary of State Debra Bowen against Nevada’s own Secretary of State Ross Miller.  This is the first matchup where we see officials of different genders being judged side-by-side, so it’s not entirely fair, but President Obama started this so blame him.

Nevada Secretary of State Ross Miller

Bowen was first elected in 2002, and re-elected in 2006, only the sixth woman in the history of the Golden State to be elected to a constitutional office. She’s got a huge job, overseeing one of the most populous state’s elections, but I’m guessing the priorities listed on her official website — government transparency, oversight of state election financing, registering corporations and domestic partnerships and maintaining the official record of legislative acts would be totally familiar to Miller, who has similar job duties here.

Miller is the son of former Gov. Bob Miller, and he’ll likely be a candidate for attorney general in 2014 and a potential gubernatorial candidate sometime down the road. He’s also a big fan of — and once a participant in — mixed martial arts fighting.

The winner? I’ve got to give this one to Miller. The MMA stuff is pretty badass.

California State Treasurer Bill Lockyer

Next up, another cross-gender matchup: California state Treasurer Bill Lockyer, a veteran pol who has held office in the Golden State since 1974, including school board member, state assemblyman, state senator (and president pro tem of that body), and attorney general.

Nevada State Treasurer Kate Marshall

He’s up against Nevada’s Kate Marshall, who catapulted directly from a private law practice into statewide office back in 2006. (She was re-elected in 2010, made an unsuccessful run for Congress in a special election in 2011 and may be a candidate for secretary of state in 2014, when Miller is term-limited and expected to run for attorney general.)

No offense to Lockyer, but this one easily goes to Marshall!

California state Controller John Chiang

Finally, there’s the state controller, a job that also focuses on proper state financial administration. In California, the job his held by John Chiang, a Georgetown-educated lawyer who lives in the beautiful Los Angeles suburb of Torrance, Calif. Chiang has recommended reforms to CalPERS, the massive retirement program for California state employees, and is in charge in that state of returning unclaimed property to its rightful owner. (Here, the treasurer has that duty.)

Chiang boasts on his website that he serves on 81 boards and commissions, which sounds like a hell of a lot of work.

Nevada state Controller Kim Wallin

He’s up against Nevada Controller Kim Wallin, a native Nevadan and the first CPA to hold the job in 50 years. (How is that even possible? Only in Nevada.) She won “Woman CPA of the Year” back in 2006, and is a proud graduate of UNLV with a degree in business administration with an accounting major.

Again, this one goes to Nevada.

So, according to my tally, Nevada has at least five better-looking constitutional officers than the state of California, a little fact that President Obama might want to keep in mind the next time he’s slinging compliments that he later has to retract due to their overwhelming insensitivity and chauvinism. On that note, in fact, I should probably extend a hearty apology to all of the hardworking officials named in this post for its offensive nature.

Sacramento Bee veteran political columnist Dan Walters

In fact, let’s turn the tables, shall we? In California, the state’s biggest name in political journalism is one Dan Walters, the longtime writer for the Sacramento Bee. He’s well-respected statewide for his insightful columns for the state’s capital newspaper. And while I never covered state politics in all my years living in California, I did work in Sacramento (for the now-defunct rival Sacramento Union) and I grew to admire Walters work then.

R-J columnist Steve Sebelius

So, let’s put Walters up against yours truly, a much less well-known, much less-respected, much-less tenured political columnist for Nevada’s largest newspaper. Let’s be honest here, readers: Who wins in our Obama-inspired California v. Nevada face off?

Yeah, Nevada’s got this one, too. Bazinga!

Anyone who thought the issue of whether the Legislature may place a competing ballot question aside the teachers union 2 percent margins tax next year was resolved may want to check out an exchange of letters between deputies to Gov. Brian Sandoval and Secretary of State Ross Miller. (Hat tip for posing those letters to my colleague Jon Ralston.) Those letters reveal that the governor, the attorney general and the secretary of state believe the Legislature is prohibited from proposing a ballot alternative.

The question is relevant because Senate Minority Leader Michael Roberson wants to put a tax on mining on the November 2014 ballot as an alternative to the teachers tax. This latest development makes that option politically and legally more difficult.

The issue first arose publicly on attorney Sean McDonald‘s legal blog, Amicus Nevada. There, McDonald raised an interesting issue: If the Legislature does not explicitly reject (read — with an actual vote) a proposed ballot question by the 40th day of the session, it is constitutionally empowered to propose an alternative to that question?

McDonald concludes no, by analyzing the text of Article 19, Section 2 of the state constitution, which reads in pertinent part:

If the statute or amendment to a statute is rejected by the Legislature, or if no action is taken thereon within 40 days, the Secretary of State shall submit the question of approval or disapproval of such statute or amendment to a statute to a vote of the voters at the next succeeding general election. … If the Legislature rejects such proposed statute or amendment, the Governor may recommend to the Legislature and the Legislature may propose a different measure on the same subject, in which event, after such different measure has been approved by the Governor, the question of approval or disapproval of each measure shall be submitted by the Secretary of State to a vote of the voters at the next succeeding general election (emphasis added).

Because the second clause doesn’t contain the same wording as the first — or if no action is taken thereon within the first 40 days – McDonald concluded that the Legislature must explicitly reject the initiative in order to avail itself of the right to place a competing measure on the ballot. And because the 40th day of the session has come and gone, and the Legislature did not explicitly reject the teachers tax, that window is closed.

Sandoval’s office apparently agrees with McDonald. In a letter to Secretary of State Ross Miller, Sandoval’s General Counsel and Policy Director Lucas Foletta writes: “During the 76th legislative session [2011], the Legislature affirmatively rejected that session’s Initiative Petition 1 with the passage of Senate Concurring Resolution 4 (‘SCR 4′), entitled ‘Rejecting Initiative Petition 1,’ within 40 days of commencement of the session before proposing a competing measure. In doing so, the Legislature adopted a procedure that appeared to track the plain language of Article 19.”

In reply, Deputy Secretary of State for Elections Scott Gilles writes that, after consultation with the attorney general’s office, “…it is our opinion that construing Article 19′s explict rejection requirement such that it would not require a vote of the Legislature on the merits of the petition would be inconsistent with the purpose of Article 19 and the plain language of the constitution. As such, the secretary of state’s office concurs with your interpretation that the Legislature has not satisfied its requirement to reject the measure qualifying it to place an alternative measure on the 2014 general election ballot (emphasis in original).”

But even if fully half of the state’s constitutional officers agree on the question, the Legislature manifestly disagrees. Kevin Powers, senior litigation counsel for the Legislative Counsel Bureau’s legal division, penned an opinion saying the Legislature can “reject” a petition by a vote, by failing to muster a vote, or by simply letting the measure die without a vote.

In fact, in a powerful support for his argument, Powers finds the Legislature has done all three in its history: It failed to pass an initiative petition in 1921, but placed an alternative on the ballot, it expressly rejected an initiative in 2011, and placed an alternative on the ballot.

And, in 1981, it simply ignored an initiative petition (taking no vote on it at all) … and yet still placed an alternative on the ballot. This action was apparently not challenged as to constitutionality at the time and mirrors precisely what happened this year.

In fact, Powers argues, it’s most common for the Legislature to reject measures by allowing them to die without a vote, much more common than bills that are brought to a vote but fail to get a majority. He also argued the Legislature should be given a wide deference when interpreting Article 19, advice the governor, attorney general and secretary of state promptly ignored.

Foletta, in his letter, tries to get around Powers’s precedent from history by arguing gamely thus: “Despite the 1981 Legislature’s actions, the weight of the Nevada Legislature’s past practice appears to suggest that the Legislature must reject an initiative petition placed before it by a vote of the body — either by expressly rejecting the petition or by the petition failing to secure the constitutionally required majority for passage — before proposing a competing measure.”

Ignoring an on-point precedent because it doesn't fit your case? Weak sauce.

As the young people say, weak sauce. Foletta simply ignores a compelling precedent from the past, pretending as if it didn’t happen in order to make his point. In fact, the weight of the Nevada Legislature’s past practice is that it “rejects” initiative petitions in all sorts of ways, and still goes on to propose alternatives.

So what now? Well, McDonald called it on his original blog: If the Legislature defies the governor, AG and secretary of state’s views on the matter and puts an alternative to the teachers tax on the ballot, this matter will surely end up before the Nevada Supreme Court. Should be a fun show, if it happens. Senator Roberson, the ball is in your court.

UPDATE: The Senate Republicans who support adding a mining tax to the ballot in 2014 put out a statement late Tuesday night replying to the Sandoval/secretary of state exchange. The text:

Senators Roberson, Kieckhefer, Hardy, Brower, Hammond and Hutchison Reaffirm Constitutional Authority of the Legislature 

History has demonstrated that separation of powers is fundamental to our system of government under the Nevada Constitution. Any attempt by the executive branch to usurp legislative authority in areas specifically reserved to the legislature–including the various means by which legislation may be approved or rejected–is inappropriate and constitutionally suspect. With these principles in mind, we have reviewed the legal arguments of the Office of the Governor, which boil down to about a page of legal analysis. We have also reviewed the half-page response of the secretary of state’s office containing no legal analysis after spending one business day considering the opinion offered by the governor’s office. The secretary of state refers to “consultation” with the attorney general’s office, but presents no legal analysis from the attorney general.

We remain highly confident in the legal opinion of the Legislative Counsel Bureau, which has analyzed legislative and constitutional arguments for decades for both Republican and Democratic legislators. LCB’s opinion that the Legislature is not required to take specific legislative action to reject the margins tax initiative is carefully researched, well reasoned, and persuasive. Indeed, LCB has specifically stated in response to the executive branch’s recent position, “if the Legislature proposes and passes a competing legislative measure under Article 19, Section 2(3), all state executive branch officers must presume that the competing measure is constitutional, they must treat it as a valid legislative measure and they must perform their constitutional and statutory duties based on that presumption unless and until the judicial branch declares otherwise.” (Emphasis added.)

We are encouraged by the overwhelming bipartisan passage of Senate Joint Resolution 15 by the Senate this week and invite again our Democratic colleagues to join in crafting legislation outlining mining tax reform to serve as a competing measure to the ill-conceived margins tax in the 2014 general election. The margins tax has received strong, bipartisan opposition among legislators. We remain committed to giving voters a choice about how to generate more revenue to fund education for the children of Nevada. Despite what we view as incomplete, unsupported, and unpersuasive opinions expressed by those outside the legislative branch of government, the Legislature has the authority to approve, by statute, an alternative measure that competes with the fatally flawed margins tax with the measure receiving the most votes becoming law if passed by a majority of voters. We believe that voters should be given the opportunity to pursue that course.

Yes, it’s a very bold reply. And yes, the acts of the Legislature are treated as presumptively constitutional until a court of competent jurisdiction declares otherwise. But that’s the legal side; the political side is what’s at issue here. Now, in addition to having to convince his fellow lawmakers to support a mining tax (and risk being tagged as tax lovers in an upcoming campaign), in addition to garnering a two-thirds supermajority to pass any such tax and overcome the inevitable gubernatorial veto, Roberson must convince his colleagues that such a move is even legal, in the face of three constitutional officers (lawyers all) saying it’s not. Added to everything else is now the specter of Nevada Mining Association v. Legislature, in which the Legislature would have to defend a mining tax alternative with amicus briefs from the governor, the attorney general and the secretary of state filed on the side of the plaintiff.

That makes the climb exponentially harder, and it was already a near-Everest ascent to begin with.

UPDATE: Kevin Powers of the LCB has penned another memo at Roberson’s request, this one outlining the Legislature’s authority vis a vis the executive branch when it comes to passing laws. In that memo, Powers argues that a.) all actions by the Legislature are treated as presumptively constitutional until a court rules otherwise, b.) the Legislature’s interpretation of the constitution should be given wide deference, except in cases of clear violation, c.) the executive branch may not interpret whether a law is constitutional or not with respect to performing their duties with respect to that law and d.) the attorney general’s opinions are not binding on the Legislature with respect to the constitutionality of laws passed.

It’s a fairly sweeping defense of legislative power, as one would expect from the Legislative Counsel Bureau, but that’s not to say Powers doesn’t make quality points with respect to defending lawmakers’ authority and giving them the option — if they so choose — to pass an alternative to the mining tax.

Read Powers’s memo for yourself here: LCB Opinion.

CARSON CITY — After Tuesday night’s meeting of the Assembly Select Committee on the Assembly, one overarching question remains in the matter of wayward Assemblyman Steven Brooks: Why exactly did the panel vote to recommend that the full Assembly kick the North Las Vegas Democrat out?

Members spoke in great generalities late Tuesday night about why they supported Henderson Republican Assemblyman Lynn Stewart‘s motion to recommend expulsion. Stewart said he made the motion for the good of the Assembly, and the good of Brooks. Assemblyman Jason Frierson, D-Las Vegas, said the pressures of the Assembly made it impossible for Brooks to continue as a lawmaker. Panel Chairman William Horne, D-Las Vegas, said he believed Brooks “is not capable of serving in this body.” And Assemblyman Wesley Duncan, R-Las Vegas, said the presentation of a confidential report moved him to vote to recommend Brooks’s expulsion. Several members remarked that Brooks needed to get help.

Assemblyman Pat Hickey, R-Reno, said he wished the public could have heard the three-hour discussion that took place behind closed doors at the Carson City courthouse Tuesday night, so that they could understand the seriousness with which panel members treated the matter. “I wish this were a more open process,” Hickey said.

And I couldn’t agree more.

Now, before you think this is just another journalist ranting about public officials meeting behind closed doors reviewing secret material and then emerging to make a motion to essentially undo an election with barely a word of explanation to the public about a matter of historic import, let me be clear: The Assembly — and the various committees thereof, including the Select Committee on the Assembly — has a constitutional right to hold closed-door hearings. The authority is found in Article 4, Section 15 of the constitution, which says:

“The doors of each House shall be kept open during its session, and neither shall, without the consent of the other, adjourn for more than three days nor to any other place than that in which they may be holding their sessions. The meetings of all legislative committees must be open to the public, except meetings held to consider the character, alleged misconduct, professional competence, or physical or mental health of a person” (emphasis added).

That language, added to the constitution in 1994, mirrors language in the state’s Open Meeting Law, that allows closed sessions of other government bodies delving into personnel issues, is directly on point in the Brooks case. Among the 900 pages of documents and 50 interviews conducted by Independent Counsel Mark Ferrario were medical, law enforcement and personnel documents that directly bear on Brooks’s character, alleged misconduct, professional competence or physical or mental health. So Ferrario’s negotiation of confidentiality agreements for the release of medical and law-enforcement information, and his subsequent insistence that that material remain confidential, is entirely legal and appropriate.

Less understandable — and justifiable — is the Select Committee on the Assembly’s refusal to release those portion of the report that are not declared to be confidential by law, or subject to secrecy under Article 4, Section 15. Hickey said during the hearing that there was a portion of the report comprised of public information and interviews with staff — material that surely could be released, either in whole or in part.

Brooks’s lawyer — Mitchell Posin — refused to waive confidentiality of the report, but was allowed to stay behind closed doors and make a presentation to lawmakers in defense of Brooks that lasted for about an hour. When I asked Posin if Brooks got a fair shake from the committee, Posin declined to answer directly. “I have no complaints with how I was treated,” he said.

What’s the big deal you ask? Only this: The Assembly is now faced with a monumental decision on a vote never before taken in Nevada. The vote will be a precedent for lawmakers in both Assembly and Senate forever. And the voters — not just in Brooks’s district, but in every district — has an absolute right to know on what basis a publicly elected official may be ejected from office.

“At the end of the day, you have to trust us that this material was not for public consumption,” Horne said after the committee’s deliberation. But is that really enough for the public, much less Horne’s fellow lawmakers, who will presumably have to make the decision based on the recommendation of the six committee members who voted to recommend expulsion? (The seventh committee member, Assemblywoman Dina Neal, D-Las Vegas, voted against expulsion but said she would have supported a lesser punishment such as suspension.) Should voters have to settle for the most superficial descriptions of the reasons for Brooks’s punishment, or tantalizing hints from Horne, who said the presentation persuaded him that Brooks was not fit to serve, and wouldn’t be in the near future? The question could become relevant as early as this evening: Lawmakers are scheduled to meet in party caucus at 6 p.m., and could hold a final vote on expelling Brooks thereafter.

I’m not arguing to make every gritty detail of Brooks’s obviously troubled life public. I’m not saying his privacy should be violated, although as a public official, he has less of an expectation of privacy than regular people. But I am saying that the public has more than a passing interest in the operations of its government, and that government is about to impose the political death penalty on one of its members. And the sad fact is, both lawmakers and the people who put those lawmakers in office will not have the information they need to decide whether that decision is appropriate.

You have to trust us. At the end of this process, that’s the only real precedent that’s been set. And it’s not a good one.

CARSON CITY —  Assembly Bill 141 was always an audacious enterprise. A state assemblyman taking aim at casino mogul Steve Wynn‘s controversial tip-pooling program? Shots do not get longer than that in this town.

But I’m reliably told that the bill by Assemblyman Joe Hogan that would specifically and categorically ban any employer from forcing his employees to share tips with others has virtually no chance of getting a hearing in the Assembly’s Commerce and Labor Committee, chaired by Reno Democrat David Bobzien. And that leaves the Transport Workers Union Local 721 — which represents Wynn dealers — disappointed at yet another turn.

Wynn sparked the issue in 2006, when he announced he would be forcing card dealers at his eponymous casino to share tips with supervisors he began calling “casino team leads.” It was difficult to recruit dealers into these jobs because the pay — sans tips — was often below that of a dealer.

Dealers responding by unionizing, despite Wynn’s appeals, and hashed out a contract during years of negotiations in which Wynn adamantly stuck to his insistence that the tip pool policy remain in place. Ultimately, dealers signed the contract rather than strike over the issue, which would likely have seen them fired and replaced with new workers. (In an interview on the subject recently, Wynn said the dealers had voluntarily agreed to the program by virtue of having signed the contract, a characterization that many dealers resist.)

But a lawsuit against the policy continued, and in 2011, a District Court judge in Clark County ruled that policy violated existing state law, much less the law as Hogan wants to amend it. That verdict is under appeal to the Nevada Supreme Court, and oral arguments are expected this summer.

Instead of waiting for the high court’s ruling, however, Hogan said he introduced his bill to fix the problem more quickly. And he’s none too pleased that his bill is waiting for the death that will come by the April 12 deadline for all bills to pass out of committee. It’s a fate more commonly felt by minority Republicans in the Democratically controlled Assembly, but not a senior Democrat such as Hogan.

I’m told the bill faces a significant problem in that organized labor is not united behind it. The Culinary Workers Local 226 has sided with Wynn on the issue, and lawmakers as well as other organized labor groups are not eager to walk into an intra-labor dispute. The Nevada Restaurant Association — whose members also use tip pools, the vast majority of which are entirely voluntary — also opposes the bill, as an unnecessary government intervention into the marketplace.

In fact, the only union that’s openly supportive of the bill is the dealers union. And they are quite alone.

There’s also no denying that Wynn has a significant political presence in Carson City — his lobbyist is former Assembly Speaker Richard Perkins – and that some lawmakers are not eager to make an enemy of one of Las Vegas’s most renowned casino titans.

But it also must be said that — of all the demands made by organized labor groups in Las Vegas, whether private-sector or public-sector — the demands of the Wynn card dealers is among the most reasonable ever. In opposing the tip pooling policy, they are not asking for extra pay or more generous benefits, but rather to keep the tokes they earn on the job, except where they voluntarily pool that money with fellow employees. Greedy, this is not.

Even if Hogan’s bill dies an ignominious death, the fight will continue at the Nevada Supreme Court. But if Hogan’s bill does die, that will be the last battlefield on tip pooling, at least until — or, more properly, if — the Nevada Legislature changes its mind.

CARSON CITY — State Sen. Ruben Kihuen, who is about to take on his highest-profile role since the 2013 Legislature began, today slammed Republicans for failing to support mining tax reform in 2011.

Kihuen is chairman of the Senate’s Revenue and Economic Development Committee, which will hear Senate Joint Resolution 15 on Tuesday afternoon. That resolution would amend the state constitution to remove the limitation on mining taxes, allowing the Legislature to impose a new tax scheme via a separate bill that may appear on the 2014 ballot.

In 2011, the first time SRJ 15 was on the ballot, it was opposed by some Republican senators who have now switched sides to support it, namely Greg Brower, R-Reno and Dr. Joe Hardy, R-Boulder City. Senate Minority Leader Michael Roberson, however, supported the resolution in 2011 and is strongly supportive of it this year. So are a pair of new senators he recruited to run in 2012, Mark Hutchison and Scott Hammond, both R-Las Vegas. In addition, state Sen. Ben Kieckhefer, R-Reno, supported the resolution in 2011 and again this year.

Kihuen “welcomed” the Republican support in a statement this afternoon:

“After being passed unanimously among Democrats last session, I look forward to Senate Joint Resolution 15 being heard in the Senate Revenue Committee tomorrow.  While we were disappointed last session that so many Senate Republicans chose to protect mining’s constitutional exemption, we are encouraged that a few of them have abandoned their previous support of the status quo and now want to work with Democrats to remove mining’s constitutional exemption.

“Now that some Republicans are willing to work with us to remove mining’s exemption, we hope they follow up on their own admission that the governor’s budget shortchanges our education system by working with Democrats to pass legislation that funds our schools today, not next year or in ten years.  While we support the removal of mining’s constitutional exemption, this does nothing to fund our schools immediately.  We hope those Republicans who were brave enough to change their position on mining’s exemption will now work with us to find additional funding sources to improve our schools for Nevada’s middle class today.”

What, you were expecting the Democrats to be happy that a Republican minority leader had hijacked one of their key issues? You were expecting them to graciously embrace a cadre of moderate members in the GOP in order to achieve a longtime policy goal, not caring who gets the credit? This is Carson City, people, not The West Wing. And more’s the pity.

But Kihuen’s point shouldn’t be lost: SJR 15 would only remove a tax cap on mining; in and of itself, it would not raise mining taxes or introduce new revenue to the state immediately. In fact, Roberson’s two-pronged proposal — put SJR 15 on the ballot, along with a measure to raise mining taxes starting in 2015 — has a serious downside, as far as Democrats are concerned: It would be styled as an alternative to the Nevada State Education Association’s 2 percent margins tax. That means voters would have to choose between taxing mining or taxing business, but not both. And none of that would happen until November 2014, which means no new revenue into Nevada’s budget now (aside from a set of supposedly temporary taxes that were supposed to expire in 2009, which Gov. Brian Sandoval agreed to extend in 2011 and already programmed into his budget for the next two-year cycle).

That’s enough to raise the ire of any Democratic chairman, I’d say. And judging by Kihuen’s “welcome to the pro-tax side” message, I’d say ire has been raised.

CARSON CITY – The agenda for the Assembly Select Committee on the Assembly shows there will be an open portion, a closed portion and open deliberations as the panel makes recommendations to the full Assembly about what to do with wayward lawmaker Steven Brooks, D-North Las Vegas.

The hearing is scheduled for 6 p.m. Tuesday at the Carson City courthouse, where security is tighter than the legislative building. You can read the committee’s agenda here: Select Committee Agenda.

According to a Democratic source, Brooks has been sending instant messages via the Legislature’s computer system — which he still has access to, apparently — urging them not to take action to expel him from the Assembly. Expulsion is the most severe punishment that can be visited upon a member of the Legislature, and it’s never been done in the state’s 149-year history.

Brooks is also fighting to get back into the legislative building, asking the state Supreme Court to overturn rules adopted by the Assembly that allow lawmakers under investigation by the Select Committee on the Assembly to be suspended with pay.

Under the state constitution, the Legislature must hold open hearings. But there’s an exception for meetings “…held to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.”

CARSON CITY – A hearing for a bill that would most directly affect former Democratic Assembly Speaker Barbara Buckley was short and sweet today, coming at the tail end of a very lengthy Assembly Legislative Operations and Elections Committee. Assembly Bill 178 — sponsored by Assembly Republican Minority Leader Pat Hickey, R-Reno, and co-sponsored by state Sen. Greg Brower, R-Reno — would force ex-lawmakers to dispose of leftover campaign contributions within two years after leaving office.

Under current law, ex-officeholders have two months to dispose of their campaign war chests, unless they become a candidate for another office. However, a person can be considered a “candidate” for office if he or she receives $100 in campaign contributions in any year, even if that person doesn’t actually file and run for office. Buckley was term-limited and left office in 2010 with a war chest of nearly $600,000. She received a $200 campaign contribution from former state Sen. Sheila Leslie, which qualified her as a candidate. But Buckley — long rumored to be interested in running for governor — has not filed for any office. (She’s currently the executive director of the Legal Aid Center of Southern Nevada.)

Hickey and Brower call the current law a “loophole,” and say AB 178 would close it. Both men noted the issue arose in 2009 — before Buckley left the Legislature — in the form of Senate Bill 210. (That measure passed the state Senate unanimously, but was never heard in the Assembly Legislative Operations and Elections Committee.)

At a May 30, 2009 hearing on that bill, former state Sen. Bill Raggio was disturbed to discover that language that would have banned keeping contributions in perpetuity wasn’t included in the bill, so long as a person received $100 or more in donations. “When I found out people are retaining campaign contributions long after they leave office, whether they were defeated or did not run, [it] astounded me. That was never the intent,” Raggio said. “It sounds to me as though people are intending to keep contributions long after it was intended they could do so.”

Raggio said he wanted the bill to be amended with language similar to Hickey and Brower’s AB 178, but that was not done, since the bill died in the Assembly.

At the hearing today, only two people testified in favor of the bill, but one of them was former state Sen. Randolph Townsend, who was just finishing up a long day of work on the state Gaming Commission. “This is about doing the right thing. This is not about anything else,” said Townsend, who said the bill had become “notorious” for the wrong reasons, a reference to its effect on Buckley.

“This is really about the credibility of those of us who served in those positions and those who serve now,” Townsend said.

Townsend stuck to his position, even after he was asked by Assemblyman Elliot Anderson, D-Las Vegas, whether the bill addresses a serious problem and if, perhaps, there weren’t “bigger fish to fry.”

Hickey could not answer the committee’s only other question about the bill, which is how the issue is handled in other states.

Because the bill is sponsored by two Republicans (a companion measure was introduced in the Senate by Brower), and because Democrats control the Legislature, and because the bill’s most obvious effect will be on a former Democratic lawmaker, there’s not a great deal of hope it will pass. Hickey said he’s supporting several other reform measures suggested by the office of Secretary of State Ross Miller. The secretary of state took no position on the measure.

Meanwhile, a Democratic complaint filed not coincidentally this week alleges that former Assembly Minority Leader Heidi Gansert misspent campaign contributions, some of which ended up helping Republican candidates in the 2012 election. You can read that complaint here: Demcomplaint.

UPDATE: Oh, sweet irony! I’ve confirmed that, after his sudden and unexpected resignation from the state Senate in advance of the 2011 session, Raggio did not immediately dispose of his own campaign war chest. Raggio resigned from office in January 2011, after the Senate Republican caucus replaced him as leader with then-state Sen. Mike McGinness, R-Fallon. But Raggio still had money in his campaign accounts when he died in February 2012 while on a vacation to Australia, a year after his resignation. Those funds were finally given away in December 2012 and February of this year, according the secretary of state’s office.

Of course, Raggio wasn’t keeping the funds in anticipation of a future election — his resignation ended the longest state Senate tenure of any person in history.

Michael Moore, look behind you. There's the line.

CARSON CITY – Filmmaker and political activist Michael Moore is known for taking controversial stands. But his rhetoric on gun control and U.S. Sen. Harry Reid has gone from powerful activism to simply outrageous.

It all stems from the fact that Reid has effectively killed the assault weapons ban, a long-shot proposition that never really had a political chance in Congress. Reid very likely reasoned there was no reason to bring the ban to a vote when it was bound to fail, and no reason to expose his more vulnerable Democratic members to a vote that could come back to haunt them in 2014.

Not only that, but Reid personally isn’t wild about banning weapons, either. (So, tell me again, right-wing, about how Reid is such a commie liberal?)

This hasn’t gone over well with the left, which has complained about the political cowardice of avoiding a vote on the issue. This morning, Vice President Joe Biden – at a news conference with New York Mayor Michael Bloomberg — lamented the politics. It’s tragic to be a politician who can’t do the right thing because he fear he’ll lose your office for taking a stand, Biden said. “That’s a hell of a way to make a living,” an obviously angry Biden said. He was followed to the podium by families of children killed in the Sandy Hook school shooting.

But it was Moore who has been even more adamant — and even more outrageous — on this issue. He’s called for releasing the autopsy photos of children killed at Sandy Hook, an outrageous suggestion that has angered parents still grieving their kids. And he’s said that if Reid’s grandchildren had been murdered by an assault weapon-wielding madman, Reid would not have blocked the bill to ban such weapons.

There’s rhetoric, and there’s being an asshole. If Moore were to glance behind him, he’d see he’s just stepped over the line separating the two.

It’s not as if Reid is innocent in all this. After the tragic deaths of seven U.S. Marines in Hawthorne, Nev., this week in a training accident, Reid on the Senate floor discussed how training budgets would be cut under the sequester. Yes, Reid mourned the deaths of the Marines, but linking that tragedy to a political fight was simply outrageous. There’s a time for politics, but the time was not then.

But there’s never a time to speculate about what a person would or would not do if his grandchildren were murdered. Sandy Hook and similar tragedies are evil enough without contemplating even more violence. Moore would certainly argue that personal experience changes a person’s perspective — and it often does. But the grief borne of the death of a person’s child (or grandchild) is too tender a ground to be trod for advancing a base political agenda.

UPDATE: Politico is reporting today that Reid will allow amendments to a gun control bill expanding background checks, including amendments that would ban assault weapons and high-capacity magazines. So, it seems there will be a vote on those issues after all.

UPDATE: Reid released a statement on the issue moments ago. The text:

“Later tonight, I will start the process of bringing a bill to reduce gun violence to the Senate floor. This bill will include the provisions on background checks, school safety and gun trafficking reported by the Judiciary Committee. I hope negotiations will continue over the upcoming break to reach a bipartisan compromise on background checks, and I am hopeful that they will succeed. If a compromise is reached, I am open to including it in the base bill. But I want to be clear: in order to be effective, any bill that passes the Senate must include background checks.

“The bill I advance tonight will serve as the basis for opening debate. Once debate begins, I will ensure that a ban on assault weapons, limits to high-capacity magazines, and mental health provisions receive votes, along with other amendments. In his State of the Union address, President Obama called for all of these provisions to receive votes, and I will ensure that they do.”

CARSON CITY – Lawyers for the Nevada Assembly argued in papers filed with the Nevada Supreme Court this afternoon that the banishment of embattled Assemblyman Steven Brooks , D-North Las Vegas, from the legislative building was within the authority of the Assembly, that it was done to preserve order and public safety and that the court lacks the power to review the action.

The filing comes after Mitchell Posin, attorney for Brooks, filed for a writ of mandamus March 5, asking the court to invalidate an order issued by William Horne, chairman of the Select Committee on the Assembly, that effectively expels Brooks from the Legislature while the committee investigates him for alleged misconduct. Earlier today, Horne announced the committee would hold its long-awaited hearing on Brooks on Tuesday.

That means the court case against Brooks could be moot. But in the spirit of constitutional legal geekery, let’s take a look at the Assembly’s brief here.

Slam dunks

First, Legislative Counsel Brenda Erdoes correctly argues that Posin sued the wrong party — he named the Nevada Legislature as defendant rather than the Assembly, which is the body that took the action against him. (In fact, the select committee adopted rules that allowed for Brooks’s suspension — which you can read here: Select Committee Rules – and the full Assembly later ratified those rules in a resolution.)

Second, Erdoes correctly identifies a significant flaw in Brooks’s writ petition — Posin demands on Page 4 that the Supreme Court “…immediately seat Assemblyman Brooks,” when on Page 3 Posin writes that “Assemblyman Brooks has already been seated as a member of the 77th Regular Session of the Nevada Legislature.” In fact, Brooks was seated on Feb. 4 along with the other 41 members of the Assembly. It was only after that seating that Horne, acting under unanimously approved committee rules, sent him a letter placing him on paid “administrative leave” for the duration of the committee’s investigation.

Third, and finally, Erdoes notes that the central case cited by Brooks — Powell v. McCormack — involved a duly elected lawmaker whom the House of Representatives refused to seat when the new Congress convened after the election. The court held in that case that the House had improperly established an extra-constitutional additional qualification for office, and found its action void. Since Brooks has already been seated, the case isn’t directly on point. (That is not to say, however, that it’s irrelevant, as I’ll discuss further down.)

Powers asserted

“Because [Brooks] was not excluded from his legislative seat for failing to meet the qualifications of his office, [Brooks's] reliance on Powell v. McCormack is misplaced,” Erdoes writes. “The Assembly determined that [Brooks] was duly elected and that he met the qualifications of his office, and the Assembly seated him. After [Brooks] was seated, the Assembly denied [Brooks] access to his seat because of his alleged misconduct. As such, the action of the Assembly was not an exclusion under Powell. It was an act of institutional self-protection and discipline, and the decision in Powell is not controlling or helpful to [Brooks] in this case.”

Indeed, it would seem the Powell case is not directly on point. Or is it? Ratified by the full Assembly or not, the suspension of Brooks — which includes a prohibition on him acting as a state legislator at all before a single witness has been called, a single document examined — is the practical equivalent of expulsion from the Legislature. I have argued that while the Assembly has plenary powers to discipline its members, and even to expel a member, it must still follow the state constitution. And the constitution requires a two-thirds vote to expel a member. By its de facto expulsion of Brooks absent a two-thirds vote of expulsion, the Assembly has exceeded its powers, I’ve asserted. (What’s the real difference between seating a duly elected lawmaker and then refusing to allow him to continue to take his seat, after all? And can it not be argued that the Assembly has simply imposed an extra-constitutional qualification upon a seated member, committing the same Powell wrong only at a different point in the timeline?)

Erdoes maintains that “under time-honored principles of the common parliamentary law, the Assembly properly exercised its inherent power of self-protection to take preventative and disciplinary action against [Brooks] pending further investigation into his fitness to serve as a member of the Assembly.” Further, she asserts that “because the Assembly had the power to take preventative and disciplinary action against [Brooks], his request for mandamus relief must be denied.”

In support, Erdoes cites an 1897 case that held every legislative body “necessarily possesses the inherent power of self-protection,” as well as Mason’s Manual (which governs Nevada legislative proceedings) and an 1856 commentary on legislative procedures, Elements of the Law & Practice of Legislative Assemblies, which says legislative bodies have the power to “preserve its own honor, dignity, purity and efficiency” and the power to “protect itself and its members from personal violence.”

Further, Elements says misconduct for which members can be punished includes “…breaches of decorum or order, or of any disorderly conduct, disobedience to the rules of proceeding, neglect of attendance, etc.; or of any crime, misdemeanor or misconduct, either civil, moral or official, which, though not strictly an attack upon the house itself, is of such a nature as to render the individual a disgrace to the body of which he is a member.”

Brooks, we know, has been arrested for allegedly threatening the life of Assembly Speaker Marilyn Kirkpatrick (although the witnesses in that case appear to have recanted their alleged statements); committed to a mental health treatment facility after a bout of (literal) swordplay; arrested again on charges of domestic violence and physically resisting Metro Police officers; and finally was refused permission to purchase a hunting rifle in Sparks. However, Brooks has been convicted of nothing as of yet.

A delightful side note: Erodes includes the fact that “…the British Parliament has disciplined some of its members for disorderly conduct by imprisonment in the Tower [of London].”  Probably not the best example to use in a case where due process rights are implicated, but who’s to quibble? By the by, is the shuttered Nevada State Prison still available for housing inmates?

Moreover, and significantly, Erdoes cites a 1929 U.S. Supreme Court case that says the temporary exclusion of a member of a legislative body doesn’t deprive constituents of equal representation. “The temporary deprivation of equal representation which results from the refusal of the Senate to seat a member pending inquiry as to his election or qualifications is the necessary consequence of the exercise of a constitutional power, and no more deprives the state of its ‘equal suffrage’ in the constitutional sense than would a vote of the Senate vacating the seat of a sitting member or a vote of expulsion,” the court wrote in Barry v. United States.

Alternatives ignored

But even if we are to assume that a de facto expulsion is proper in this case — and that, I think, has yet to be determined, one question never asked or answered in the brief is this: Could not the Assembly have made accommodations that would have both allowed Brooks to exercise his powers and duties as a lawmaker and satisfied the Assembly’s need to protect order, decorum and public safety?

For example, why could Brooks not be told that he would be subjected to a higher level of security and scrutiny because of the allegations against him. He could have been ordered to report to a particular entrance to the legislative building every day, there to be searched for weapons. He could have been escorted throughout the building by an armed member of the Legislative Police, and told that he would face arrest if he did anything improper. (Although the Nevada Constitution gives members privilege from arrest during sessions and 15 days thereafter, that privilege only extends to civil process — a lawmaker could not, for example, rob a 7-Eleven and then claim freedom from arrest because he was on the way to the Assembly chambers for a vote.)

In the alternative, why couldn’t Brooks be assigned to work in a space where he could participate in committee work and votes remotely, similar to the way people are allowed to testify by closed-circuit television from Las Vegas? He could be secured in an office but still cast votes in committee and on matters on the Assembly floor, but not allowed to mix with others in the building, thus lessening or eliminating entirely their fear of violence. (I’ll skip the debate about whether fear of violence is enough to circumscribe constitutional provisions, or the evaluation of whether that fear is reasonable. But it should be noted that, during the two days Brooks was seated and allowed to participate in the Assembly’s proceedings, he behaved without incident. Indeed, the very fact that Brooks was accommodated in the building — albeit with additional security measures — argues in favor of a solution less drastic than the de facto expulsion Brooks has faced.)

It doesn’t appear the Assembly or its lawyers ever considered the possibility of allowing Brooks to continue to serve — as long as he behaved properly — before it leaped to its imperfect solution, a point which ought to be raised before the Supreme Court. And while such a solution might be inconvenient, the mere fact of its inconvenience does not automatically eliminate it as a possible course of action.

Butt out, justices!

Finally, Erdoes argues that the Supreme Court should not grant Brooks’s motion because it would intrude into the “plenary and exclusive” powers of the Assembly to punish or expel its members. It cites cases in which the former secretary of state brought an action seeking to prevent state executive branch employees from being seated as lawmakers (a violation of the constitution’s separation of powers clause, I’d argue) and the state Ethics Commission’s attempt to discipline a member for an alleged conflict of interest in voting — cases in which the court elected not to intervene because they would have intruded on constitutional powers of the Legislature to seat and discipline its members.

Here is where the Powell case is relevant, however: In addition to establishing that a legislative body may not establish extra-constitutional qualifications in refusing to seat a duly-elected person in office, Powell also stands for the principle that, in some instances, the judicial branch may intervene in legislative affairs. The court in Powell ruled that it had a “textually demonstrable commitment” to interpret the constitutional provisions regarding seating of members (although justices did not say how or even whether they would have had the ability to rule had the House simply expelled Powell rather than “exclude” him).

If the Assembly, upon receiving a report from its select committee, elects to expel Brooks from office, the court will likely have nothing to say about the matter, since the constitution clearly gives the Assembly that power. (In fact, no standards for expulsion are listed; this means the Assembly has broad discretion as to what constitutes the grounds for expulsion.)

But short of an actual expulsion vote, I continue to believe the court has jurisdiction to interpret the meaning of the constitution regarding the discipline of its members, including and especially addressing itself to the question of whether a de facto expulsion absent a vote is constitutionally proper, or even legally possible. Here’s hoping we get to see that ruling.

CARSON CITY — NV Energy says “a third-party vendor” prepared air quality reports with “irregularities” and was immediately dismissed by the company once the incident came to light, company President Michael Yackira said in a statement.

The statement comes after the Review-Journal‘s Henry Brean reported today that NV Energy had sent falsified air quality reports from the Reid Gardner coal-fired power plant to the Nevada Division of Environmental Protection over a period of years. The allegations were contained in documents obtained by the Moapa Band of Paiute Indians, who live near the plant and have been battling to have it shut down.

Yackira released a one-page statement to the media today explaining the company’s side of the story:

In the summer of 2011, the Nevada Division of Environmental Protection discovered irregularities in a report filed by a third-party vendor regarding certain ambient air quality data at the Reid Gardner facility. As soon as those irregularities came to our attention, NV Energy launched a joint investigation with the NDEP regarding the vendor. It is essential to note that the data in question is utilized for air shed modeling and is not relied upon for compliance purposes. When reporting irregularities were confirmed, NV Energy immediately terminated its relationship with that vendor. As a result of the findings, the NDEP, per its common practice, issued a Notice of Alleged Violation in the form of a warning letter to NV Energy, concluding that the incident was based largely on human error by the vendor in question. The Reid Gardner station has continuous emissions monitoring in place for all regulated air pollutants, and has been and remains in substantial compliance with all regulatory requirements. Any reports that NV Energy falsified any documents or reports are patently false.

Although the statement didn’t identify the vendor, I’ve confirmed that the company in question is Environmental Monitoring Company, Inc., known as EMC.

The Reid Gardner plant has come under fire from no less than U.S. Sen. Harry Reid, who last year accused NV Energy of killing the Indians who live nearby and demanding the plant be closed. NV Energy says it only runs the Reid Gardner plant in the summertime, to meet peak demand for electricity in Las Vegas. The plant was recently given clearance to continue operating by the Environmental Protection Agency.

UPDATE: The Nevada Division of Environmental Protection, in a rare response to allegations contained in the Review-Journal, today released its own statement, defending NV Energy from allegations of falsified reports. The text:

Response to March 20, 2013 Las Vegas Review-Journal article, “Documents: NV Energy falsified pollution reports”

1. The Nevada Division of Environmental Protection has no evidence that Nevada Energy [sic] submitted “faked” or “falsified” data on Reid Gardner Generating Station for 2006‐2010 reporting period or failed to comply with any air quality standards or requirements.

a. During the 5‐year review of data collected from meteorological and ambient air quality monitoring (2006‐2010), problems with PM10 data collected and recorded by a third party contractor for NVE were discovered and corrected. This data is not required to demonstrate compliance with environmental standards. This data is used by NDEP for regional airshed modeling for resource management purposes.

b. Air quality compliance at the facility is based on stack emissions monitoring of all four units at Reid Gardner Generating Station. Stack emissions monitoring was conducted as required on a continuous basis on all four units between 2006 and 2010. Based on this direct and continuous measurement of emissions and process parameters, as required in the Air Quality permit, the facility is in compliance with all state and federal air quality standards and permit limitations and conditions.

2. The Nevada Division of Environmental Protection has no evidence that Nevada Energy has violations of its permitted heat input limitations at the Reid Gardner Generating Station.

a. Based on the information and data provided, the Nevada Division of Environmental Protection has no evidence to support that any violations of the heat input limitations established in the facility’s permit have occurred. However, the Division is investigating new allegations that may have arisen through the tribe’s apparent misinterpretation of data.

 UPDATE: Here’s more on the story from the Review-Journal‘s Henry Brean, with a photo that can’t be good for NV Energy.

The XpressWest train, which has zoomed into the hearts of Nevada's legislative leaders.

CARSON CITY — All four leaders of the Nevada Legislature — Republican and Democrat — today released a letter in support of the XpressWest train project. Funding for the train was recently called into question when House Budget Committee Chairman Paul Ryan, R-Wisconsin, and U.S. Sen. Jeff Sessions, R-Ala.,  wrote to Transportation Secretary Ray LaHood, calling on him to refuse to loan money to the project.

The train, backed by casino construction magnate Tony Marnell and Republican political consultant Sig Rogich, would run a high-speed, steel-wheel-on-rail line from Las Vegas to Victorville, Calif., where Southern California residents could catch the train for a ride to Las Vegas. Eventually, backers hope to incorporate the train into the planned California high-speed rail system.

The letter, signed by Assembly Speaker Marilyn Kirkpatrick and Republican Minority Leader Pat Hickey as well as Senate Majority Leader Mo Denis and Minority Leader Michael Roberson, argues that the federal government should approve loans for the project to create jobs and help Southern Nevada’s economy.

“XpressWest is vital to the economic and transportation future of Nevada, and we urge the Federal Railroad Administration to approve XpressWest’s … program loan,” the state lawmakers wrote. “If the loan is approved by the FRA, XpressWest is ready to build and will immediately create well paying construction jobs for our citizens. At a time when Nevada’s economy is still recovering, XpressWest offers an economic boost to the region while allowing faster and more reliable transportation linking Southern Nevada with Southern California.”

You can read the letter for yourself here: NV leg letter.

The letter represents the latest demonstration of political juice to get behind the XpressWest project, formerly called the DesertXpress. U.S. Sen. Harry Reid, after decades of supporting a magnetic levitation train idea that would have run between Las Vegas and Anaheim, Calif., switched his support to the XpressWest train in 2010.