Brooks case about timing, not righteousness

If the Assembly has the power to expel Brooks from the Legislature entirely, what’s the big deal if they ban him from the building and forbid him from acting as a lawmaker until they finally get around to kicking him out?

That’s part of the argument Assembly lawyers made to the state Supreme Court this week, in response to a demand from Brooks’ lawyer that he be allowed to resume his duties until the committee that’s investigating him gets around to making its final recommendation.

But the paradox of the Brooks case is this: While the Assembly does have the authority to expel Brooks, it can only do so after a two-thirds majority vote. What it can’t do is impose a de facto expulsion before it’s held a single hearing, examined a single witness or seen a single document.

The Assembly’s counsel — in the person of Legislative Counsel Brenda Erdoes — respectfully disagrees with me. By adopting rules that allowed the Select Committee on the Assembly’s chairman to place Brooks on “paid administrative leave,” and by the full Assembly ratifying those rules, “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.”

In support, she cites court cases, legislative manuals and even an 1856 book on legislative procedures, which says legislative bodies have the authority to protect themselves against personal violence, as well as to punish members for “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 has been arrested on suspicion of threatening the life of Speaker Marilyn Kirkpatrick; committed to a center for treatment of mental illness; arrested and charged with domestic violence and resisting a police officer; and denied permission to buy a hunting rifle. But, it must be said, he’s been convicted of nothing.

Omitted from the Assembly’s argument is an answer to this question: Why couldn’t the Assembly accommodate both Brooks’ right to serve in the office to which voters elected him, and the right of the Assembly to ensure public safety, for its members, employees and the general public?

Couldn’t Brooks have been told he’d be subject to search upon entering the building, and escorted constantly therein by a Legislative Police officer? (Legislators are constitutionally privileged from arrest on civil process during the session, but not for committing crimes, such as breach of the peace.) Or, if that was deemed too risky, could Brooks not have been assigned to a satellite facility and allowed to participate and vote via closed-circuit television?

The answer, of course, is yes: Brooks actually did serve for a couple of days under the watchful eye of a Legislative Police officer, and didn’t misbehave during that time. This proves that lesser (and more constitutional) remedies were available to the Assembly.

Instead, the Assembly elected to essentially undo an election by simple committee rules and raise serious constitutional questions as a result.

The Select Committee on the Assembly is scheduled to meet Tuesday — in the secure Carson City courthouse — to hold its hearing on Brooks. It will probably vote shortly thereafter on whether to expel him. (If that happens, he’ll go down in history as the first lawmaker ever kicked out of the Legislature.)

That means this case will probably be moot, and a ruling will not ever issue. The Assembly will thus prevail, not because its members were right, but because they were timely.

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.