After Brooks’ bizarre behavior, what now?

The truest thing said thus far about the increasingly bizarre saga of Assemblyman Steven Brooks, D-North Las Vegas, comes from former state archivist Guy Rocha, a man who has seen almost everything.

“This is truly uncharted territory in Nevada,” Rocha told me.

Indeed it is. There have been angry confrontations between lawmakers before, but nothing like this.

No state lawmaker has even been arrested and jailed for making threats of physical violence against the speaker-designate of the Assembly. And as a result, the Legislature has never had to contemplate the question of what it’s supposed to do about it.

Brooks told me in a brief, odd telephone interview Monday that “I’m innocent,” and that “Marilyn wants to kill me.” He was referring to Assembly Speaker-designate Marilyn Kirkpatrick, a fellow North Las Vegas Democrat and the woman whom he’s accused of threatening. Brooks said Kirkpatrick had abused her power to put him in jail.

(In fact, it was the North Las Vegas police who arrested Brooks, after hearing from Kirkpatrick and state Sen. Kelvin Atkinson, D-North Las Vegas, about threats Brooks allegedly made in front of Las Vegas Councilman Ricki Barlow. Barlow apparently thought enough of the remarks to alert Atkinson, who was worried enough to tip Kirkpatrick, who eventually called police. They arrested Brooks and discovered a handgun in his car.)

Before abruptly hanging up with me, Brooks vowed to travel to Carson City Tuesday to meet the press and attend a budget hearing at which Kirkpatrick would also be present. He failed to show (his lawyer told reporters Brooks was in the hospital).

But that confrontation can’t be avoided forever.

Brooks is a duly elected member of the Assembly, who will presumably show up to take his seat Feb. 4, when the Legislature convenes.

So what then? Metal detectors and frisks in the hallways? Or does the Legislature, without recourse, have to live with the idea that one of its members may be plotting violence against a leader?

Discussions have centered around two possible ideas to resolve the situation, going on the assumption that Brooks will not resign. First, the Legislature could elect not to seat Brooks with his colleagues on Feb. 4, and second, lawmakers could vote to expel him thereafter, which requires a two-thirds vote.

Both are problematic.

The state constitution – in Article 4, Section 6 – specifies that both houses of the Legislature “shall judge of the qualifications, elections and returns of its own members.” That’s very similar to a passage in the U.S. Constitution, in Article 1, Section 5. But when the House of Representatives in 1967 elected to exclude then-Rep. Adam Clayton Powell Jr. – based on allegations of misconduct, but absent a conviction of any crime – he sued. The result was Powell v. McCormack, which held that Powell had been unconstitutionally barred from taking his seat. Congress could not develop new qualifications for members beyond those already in the Constitution, the court held.

The upshot? Under Powell, it may be difficult for the Legislature to refuse to seat Brooks, who was considered elected the day after voting. If members did exclude him, he could sue to regain his seat.

That leaves expulsion. Put aside the question of whether the Assembly could muster two-thirds of its members to expel Brooks based only on the evidence gathered to date. The real question is, under what circumstances does the Assembly take the extraordinary step of removing a member?

What due process is involved, if any? Is an allegation and arrest enough, or is a conviction required? And what are the rules for the proceeding?

Our constitution is silent on those questions, which is why legislative lawyers have been hitting the law books to answer them. They’ve got less than two weeks before this academic debate becomes maddeningly practical.

As Rocha said, “This is uncharted territory.”

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or ssebelius@reviewjournal.com.