Attorney General Opinion (775)

Transcription

1 The Office of the Attorney General issues the following opinion per Speaker Fabbi's request on April 28, 2014; see attached memo for more details on the request. Speaker Fabbi listed a litany of complaints, grievances, or concerns both within and outside his jurisdiction, purview, or power. First, it is important to address that disregarding a decision of the Judicial Council - namely in regards to Speaker Fabbi's in requesting this opinion (which did not utilize the necessary form or format found on the Nevada ASUN website to be used in the event of an opinion) in saying "Until I receive an opinion upon the legality of this case and clarification upon the concerns that I have outlined in the memo, and the procedures that ought to be followed, I will not be agendizing any items for an impeachment trial" - is potentially an actionable offense. Per SAS Rule 6(a)(1) which states, "Orders issued by the Council as a whole may only be rescinded by the Council as a whole," Speaker Fabbi cannot, per Statute, rescind or disregard a Judicial Council decision. The Office of the Attorney General will have no choice but to file charges if the Impeachment Hearing is not put on the agenda, per the Judicial Council's decision, for May 7th. Secondarily, I will address the plethora of grievances that Speaker Fabbi has raised, and will further guide and advise the Senate in terms of Impeachment Proceedings which - until recently it seems - have been fairly unprecedented. Speaker Fabbi's Concerns are as follows: 1) The statutory authority that the Judicial Council holds to enforce emergency injunctions that are not preliminary as outlined in SAS Rule 3.f.1. 2) The insinuation from the Judicial Council that appointing executive officers as scheduled on April 29 th /30 th through Oversight and Senate would lead to irreparable harm to the Association, and is being used as justification to issue such an emergency injunction (even though it is outlined specifically for a emergency preliminary injunction ); 3) The actual occurrence of an attempt by a Justice to contact the opposing party of the trial, as outlined in SAS Rule 3.f.1.iii. 4) I will be violating proper procedure and due process for the impeachment of an elected official if I follow the directive given to me by the Judicial Council. 5) To my knowledge, proper notice and reasoning, as outlined in NRS , has not been given to the party involved as of yet. 6) Does the Judicial Branch hold the power to enact impeachment proceedings in the Senate? 1

2 In regards to the first grievance brought up by Speaker Fabbi - that the "emergency injunction" is not "preliminary" - this Office holds two opinions: 1. The injunction is preliminary by nature, nullifying the concerns Speaker Fabbi may have. 2. The Judicial Council has the power to issue such injunctions and stays regardless of its preliminary nature. This opinion stems from the following facts and matters of law. First of all, the injunctions - both the two initial injunctions staying the appointment of the next Attorney General and Judicial Council and those coming after the hearing staying all other appointments - are preliminary considering the order by the Council is a recommendation for impeachment. These injunctions will hold until such a time a hearing is held and the Council no longer stands to be involved, or until a trial is held and concluded with similarly concludes the involvement of the Council (as the Chief Justice would preside over such a trial). Second, and so as to prove the Judicial Council's ability to issues such injunctions regardless of its preliminary nature, we must pay attention to SAS Rule (f)(1)(v) which reads: "An Emergency Preliminary Injunction is considered to be an order of the Judicial Council en banc if it is not rescinded at the meeting immediately following its inception." If these injunctions ought not be considered preliminary, then we can see them as legitimate orders by the Council as part of their decision moving forward and the selection of punitive punishments. As such, the injunctions stand and must be respected. Furthermore, if they are to be considered orders by the Council as a result of their findings in the course of their investigation and hearing, they need not contact President Pereira nor offer a rebuttal. Beyond that, however, is these injunctions are to be considered as orders and directive for the Speaker rather than the President, we see no abuse; the Speaker was alerted to the injunction right away, and the memo (which led to this opinion) constitutes the rebuttal. With regards to the second concern, which goes to the question of the irreparable harm that could be done by following through with the current executive officer appointments, we see several matters of law and ethics in question. First and foremost, it is not the Speaker's jurisdiction to establish what irreparable harm is - nor is it within the purview of this Office. The Judicial Council is the ultimate authority in issuing such injunctions and establishing such harm, and theirs is the last say. 2

3 Furthermore, in terms of the justification for such irreparable harm, we can see the potential for irreparable harm lies in the bait-and-switch nature of ephemeral appointments. It is accepted that appointments to the Executive Branch last one year; should President Pereira's appointments go through and he is removed from office, it strips his successor (Vice President Bybee) of his power and authority to appoint his own Executive Advisory Cabinet or violates the rights of those appointed when they are removed without cause within such a small time frame. The third contention by Speaker Fabbi can be seen as addressed above; if the orders are en banc and/or a result of the Judicial Council's decision post-hearing, then they are a legitimate order and not subject to rebuttal nor is the Council required to give notice beyond informing President Pereira of their existence, the decision made, and posting them to the website in due form. If these injunctions are to be considered preliminary in nature until such a time the impeachment proceedings end, then the Council informing President Pereira of the injunctions and posting them on the website constitute contacting President Pereira and he has an opportunity for rebuttal; SAS Rule 3(f)(1)(iii) gives a great deal of flexibility on the timeframe in which President Pereira can rebut the injunction: "within the applicable time constraints, to issue rebuttal to argumentation for irreparable harm against the petitioner and/or to offer their own argumentation for irreparable harm against the defense" Grievances four, five, and six all go to the same issue - which is itself null. The Judicial Council, in this instance, serves as the Oversight Committee in the initial recommendation and investigation - it is for that reason the meeting on May 7th will be a hearing to decide the impeachment of the President, and the following meeting (should he be impeached) would be the trial to ascertain guilt and establish a punishment. As to the specific question of NRS , President Pereira doesn't need 21 days notice by mail, considering (2)(a)(1) reads that such notice can be "Delivered personally to that person at least 5 working days before the meeting." Assuming he is personally given notice today (Wednesday, April 30) the hearing can proceed as ordered and scheduled; failure to do so would mean he would have to waive such rights to notice, and the hearing would have to be postponed. Furthermore, the point is moot as the President was given notice last night (see attached). Speaker Fabbi expresses concern for the provision of the possibility for further punitive action in writing, as is required for the Oversight Committee. This point is also moot, as the Judicial Council is itself a punitive body and the SAS - of which President Pereira is perfectly well aware - dictates the decision making and jurisdiction for punishment of the Council. Furthermore, the Council itself is not a body that is subject to NRS, and is not by law required to furnish such a warning or stipulation. 3

4 With regards to Speaker Fabbi's reliance upon the clause The Senate shall have the power to try all impeachments, I would direct him to the language of that same such clause; the Senate has the power to try all impeachments, but the Constitution doesn't limit the ability to initiate the proceedings or report favorably upon impeachment (as Oversight wouldn't have such authority, either, as it's not the Senate at large). Finally, Speaker Fabbi's memo highlights the requirements for a closed meeting in NRS (2)(c)(1); these proceedings ought not be closed in the first place, so the point is moot. In response directly to the concerns Speaker Fabbi has, and in summation: 1. The Judicial Council can, per SAS Rule (f)(1)(v) and the nature of these proceedings, enforce an injunction of this kind. 2. There is the potential for irreparable harm, as that is to the jurisdiction and discretion of the Judicial Council and outside my or Speaker Fabbi's authority; further clarification from the Council may be requested. 3. There has been good faith effort to contact the opposing party, as both President Pereira and Speaker Fabbi are well aware of the decision, and can rebut the injunctions at virtually any time. 4. The decision of the Judicial Council, in this instance, will replace the Oversight Committee in the process outlined for Vice President Malin, and will continue as normal. 5. The proper notice was given last night, in person, by the Chief Justice and witnessed by Justice Christensen. 6. See response 4; the Judicial Council has such jurisdiction, authority, and even an obligation to do so given their ability to investigate and punish based on the Constitution and the finding of malfeasance, but the limitation on their power to impeach elected officials. As it stands, there is significant room for the Judicial Council to clarify and weigh in on the interpretation of the law; my Office yields to the authority of the Council on these matters. Be it so advised on this Twenty-Eighth Day of April, Two thousand and fourteen. Respectfully, Attorney General 4

5 Notice given to President Jake Pereira on 4/29/14 5

6 Notice given to Speaker Caden Fabbi on 4/29/14 6

7 FROM: TO: Speaker of Senate, Caden Fabbi Attorney General, DATE: April 28, 2014 RE: Judicial Council Rulings Attorney General Kish, First and foremost, please understand that this memo is in no way intended to impede the occurrence of an impeachment trial, as ordered by the Judicial Council of the Associated Students (Re: Judicial Opinion Assenting Impeachment). Rather, please share my belief that it is of utmost importance that every branch of government upholds integrity to ensure that all sides in said case are given due process for these proceedings and a fair trial. It is also vital that the legislative branch moves forward with such proceedings being one hundred percent certain that the proper procedures are being followed for such potential actions. Mistakes within these areas could open the Association up to various conflicts, including potential ( real-life ) lawsuits. My first concern is in regards to the legality of the Emergency Injunction issued by the Judicial Council, dated April 27 th, 2014 (Re: Injunction to Stay the all Appointments put forth by President Pereira). The power of the Judicial Council to issue an emergency injunction is one that is perplexing to me in the first place nowhere in any of ASUN s governing documents is such wordage used. What is allowed in Statute, however, is the use of an Emergency Preliminary Injunction, as outlined in SAS Rule 3.f.1. I would assume that the power of the Judicial Council outlined here served as the grounds that the council felt appropriate to issue such injunctions. The section reads as follows: f) PRELIMINARY INJUNCTION: The Council will issue a Preliminary Injunction when there is adequate reason to believe irreparable harm will be done prior to a formal hearing of the Council. Such an order 7

8 will preserve the status quo of the situation at the time of filing, and shall be rescinded upon a decision of the Council. 1) EMERGENCY PRELIMINARY INJUNCTION: i) Any Justice may order an Emergency Preliminary Injunction if there is adequate reason to believe irreparable harm will be done before the Council can meet. ii) Before issuing such an order, a Justice must consider, in his or her best opinion, that the four criteria for accepting a case are met by the petitioner s charges. iii) Before issuing such an order, a Justice will make a good faith attempt to contact the opposing party and offer the opportunity, within the applicable time constraints, to issue rebuttal to argumentation for irreparable harm against the petitioner and/or to offer their own argumentation for irreparable harm against the defense. 1) The Justice will not wait longer than the maximum time before, in his or her best opinion, irreparable harm would be done. iv) Before issuing such an order, an Associate Justice will attempt to contact the Chief Justice and/or the senior Associate Justice for consultation. The senior Associate Justice will attempt to contact the Chief Justice. v) An Emergency Preliminary Injunction is considered to be an order of the Judicial Council en banc if it is not rescinded at the meeting immediately following its inception. Though the preliminary injunctions ordered on the 17 th of April, 2014 (Re: Injunction to Stay the Appointment of Justices and Re: Injunction to Stay the Appointment of the Attorney General) appear to be in concurrence with statutory law, my issue lies with the aforementioned injunction disallowing any appointments set forth by President Pereira. Please follow my reasoning behind these concerns: 1) This injunction appears to have been created during or after the beginning of the Judicial Council proceedings, and thus, is not an Emergency Preliminary Injunction as outlined in SAS Rule 3.f.1. The injunction appears to have been created in concurrence with the Judicial Opinion Assenting Impeachment. The injunction even says itself, As a result of the proceedings of the case Kish v. President Pereira, the ASUN Judicial Council has recommended him for impeachment before the ASUN Senate. As a result, ASUN Judicial Council orders a stay on all appointments put forth by President Pereira until the conclusion of the impeachment proceedings against him. Such 8

9 wordage indicates that the writing of the injunction occurred after the trial of President Pereira. The validity of the injunction itself is in question, as it clearly did not occur before the Council met. I am afraid that the Council may be acting upon powers that it simply does not have. 2) If, for whatever reason, the injunction is ruled as legal within our statutes, SAS Rule 3.f states that The Council will issue a Preliminary Injunction when there is adequate reason to believe irreparable harm will be done prior to a formal hearing of the Council. Regardless of the, again, very clear wordage that such injunctions are to happen prior to a formal hearing of the council, the term irreparable harm is a subjective statement in the situation before us, which does not appear to have been addressed by the Council in their injunction or opinion at any point. One could even make the argument that irreparable harm is occurring by postponing said appointments. To elaborate: a. If the Speaker of the Senate were to follow through with all directives by the Judicial Council, the Committee on Oversight Meeting scheduled to be held on Tuesday, April 29 th would be cancelled, and the proposed approval of the nominations for the executive council agendized for Wednesday, April 30 th would go unheard, as an impeachment proceeding would be held on Wednesday, May 7 th. Because of the requirements outlined by Nevada Open Meeting Law, the agenda for such appointments (solely for officers not specifically outlined in the injunctions issued on April 17 th ), an Oversight Committee meeting would be unlikely to be scheduled until, at the earliest, Tuesday, May 13 th ; and confirmed through the Senate on Wednesday, May 14 th. Seeing that instruction ends on Wednesday, May 14 th, many students (and student officers) are likely to have already returned home for summer break. This brings up a multitude of issues: i. The likelihood of ASUN student officers, particularly senators, to be absent for the appointment of executive officials; ii. If said Directors were appointed on Wednesday, May 14 th, they, assumedly, would use the next week to interview candidates for subsidiary positions within their respective departments. With many students having likely returned home for the summer already, ASUN is put at a large disadvantage with its hiring of officers within the departments of Programming, Legislative Affairs, and Clubs and Organizations. This is where Directors could face an ethical dilemma; are those that have left town for the summer inherently at a disadvantage because they could be unable to interview in person? iii. With subsidiary positions yet to be filled by this time, the ASUN road trip, scheduled for May st, will likely be cancelled. This trip would have 9

10 been particularly beneficial for programmers, but with said programmers unlikely to be hired until the week of May 18 th, they would be unable to attend the road trip. With issues such as holding proper interviews with applicants for these subsidiary positions (and club commissioners, justices, and an Attorney General also being confirmed at some point in the next few weeks through the Senate), one can even wonder at the possibility of not having all officers hired and in position by the June 6 th ASUN retreat. iv. ASUN cannot simply quit operating because of this. I will not let this trial continue to be more of a distraction from the very important work that happens at the beginning of the term than it already is and has been. The irreparable harm in this situation could be just the opposite of what the Judicial Council insinuates in its order of an emergency injunction. By removing potential leadership enrichment opportunities, as well as pushing back even further (over a month after the swearing in of the President and Vice President) the appointments of various ASUN student officers, and thus, halting any progress for officers within the Association during the lost time, one could argue that, by pushing back these appointments, irreparable harm is being done to the officers of the Association. Additionally, the integrity of each department Director s appointments could be at risk (again, irreparable harm ). If the currently agendized officers were approved, and President Pereira impeached, the Presidency would be taken over by the Vice President. The newly appointed President could decide whether or not such officers could stay to work for their administration, or be released just as easily, if not easier, as they may be approved or disproved by the Senate. These issues were discussed neither within the assenting opinion nor within the injunction to suspend appointments. All of these issues could be resolved by simply allowing appointments to go through as planned with respect to the last, correctly filed, injunctions on April 17 th. 3) The occurrence of an attempt by a Justice to contact the opposing party and offer the opportunity, within the applicable time constraints, to issue rebuttal to argumentation for irreparable harm against the petitioner and/or to offer their own argumentation for irreparable harm against the defense as outlined in SAS Rule 3.f.1.iii. Seeing as I have not seen proof of such an offer, I am uncomfortable with moving forward in enacting these injunctions (particularly the one issued on April 27 th ) without the confirmation of such required occurrences as outlined in statute, happening. In summation, I am concerned of: 10

11 1) The statutory authority that the Judicial Council holds to enforce emergency injunctions that are not preliminary as outlined in SAS Rule 3.f.1; 2) The insinuation from the Judicial Council that appointing executive officers as scheduled on April 29 th /30 th through Oversight and Senate would lead to irreparable harm to the Association, and is being used as justification to issue such an emergency injunction (even though it is outlined specifically for a emergency preliminary injunction ); 3) The actual occurrence of an attempt by a Justice to contact the opposing party in the trial as outlined in SAS Rule 3.f.1.iii. My second tier of concerns comes from the actual procedures of impeaching an elected official. It is common knowledge to most that I have participated in such proceedings before, particularly during my time as a Senator in the 81 st Session of ASUN Senate. As impeachment was not a process that anyone within the offices of the Associated Students was familiar with, the Senate, and specifically former Speaker Byrnes, requested the opinion from you, Attorney General Kish, regarding the proper procedures for impeachment of an elected official. This opinion was completed and forwarded to the appropriate individuals on December 5 th, This opinion set a precedent for the proper procedures to impeach a student officer. According to the opinion, they are as follows: First, the Committee on Oversight would inform the Government Official in question that they are to be investigated, per (1)(a) and (2)(a). Secondarily, the Committee if it had elected not to include a notice per (2)(b) must call the Official in question down another time to include that stipulation. Finally, it is important to realize that (2)(c) is in place to ensure that due process is afforded and clarity/transparency in the investigations is present. As such, they may report favorably in the form of a binding resolution on the impeachment of the Official in question. The Senate shall discuss and debate the Resolution in normal venues and recourse. Should the resolution be approved by a simple majority, the Official is impeached (although, per the Constitution Article III, Sec. 4(a), the Official will continue to hold and discharge the duties and powers of the Office considering no conviction has been rendered) and a hearing will be held to establish the disciplinary action to be taken if the Official is convicted. 11

12 Either the Speaker of the Senate, Chief Justice or Vice President, per Constitution Article II Sec. 5(b), shall Chair the meeting depending on the Officer; Senator, Executive Officer, or Judicial Officer, respectively. At this time, evidence will be presented, witnesses offered, and arguments made per SAS , specifically Rule 4 (considering the changed venue, many of the Rules would be improper on the Senate floor), although the Judicial Council has to its purview the ability to entertain other aspects or Rules arguably under its jurisdiction. For instance, Rules 5 and 6 have no bearing or place in the impeachment process considering the Senate holds the jurisdiction and establishment of culpability, guilt, and punishment. Should the Senate vote by a 2/3 majority to convict the Official, they shall consider the punishment. Turning to the precedent set in 2006 by the 74th Senate Session as it pertained to the impeachment of Senators Steven Caloiaro and Shane Steinbauer, the Senate has the authority under Sec. 5(c) of the Constitution to render (by another 2/3 majority vote); 1. Removal from office with disqualification to hold any office of honor, trust, or profit under the Associated Students ; 2. Removal from office; 3. Or censure The recently released Judicial Opinion Assenting Impeachment directs myself, the Speaker of the Senate, to agendize the impeachment proceedings against President Pereira for the Meeting of the Senate on Wednesday, May 7 th, 2014 (the Dead Day Meeting). The direction given to me by the Judicial Council does not appear to be in line with the precedent set by you, Attorney General Kish, in the opinion sent out in the 81 st session. Further, we must take in to consideration laws outside of our government s jurisdiction. As the Attorney General s opinion of the proper impeachment proceedings states, we must take into consideration Nevada Open Meeting Law, NRS , which states that: 1. Except as otherwise provided in subsection 7, a public body shall not hold a meeting to consider the character, alleged misconduct, professional competence, or physical or mental health of any person or to consider an appeal by a person of the results of an examination conducted by or on behalf of the public body unless it has: (a) Given written notice to that person of the time and place of the meeting; and (b) Received proof of service of the notice. 12

13 2. The written notice required pursuant to subsection 1: (a) Except as otherwise provided in subsection 3, must be: (1) Delivered personally to that person at least 5 working days before the meeting; or (2) Sent by certified mail to the last known address of that person at least 21 working days before the meeting. (b) May, with respect to a meeting to consider the character, alleged misconduct, professional competence, or physical or mental health of a person, include an informational statement setting forth that the public body may, without further notice, take administrative action against the person if the public body determines that such administrative action is warranted after considering the character, alleged misconduct, professional competence, or physical or mental health of the person. (c) Must include: (1) A list of the general topics concerning the person that will be considered by the public body during the closed meeting; and (2) A statement of the provisions of subsection 4, if applicable. Having received no proof of such written notices or lists occurring as of yet, I am uncomfortable agendizing an impeachment trial in the first place if law that isn t even under the Association s control is being violated. Such an action would compromise the integrity of the entire Association and would not be appropriate in any form. Thus, I am concerned of the following regarding this issue: 1) I will be violating proper procedure and due process for the impeachment of an elected official if I follow the directive given to me by the Judicial Council. 2) To my knowledge, proper notice and reasoning, as outlined in NRS , has not been given to the party involved as of yet. My final tier of concerns is regarding the Judicial Council s authority to enact an impeachment process in the first place. Though I recognize that these proceedings are the first of its kind, at least in recent memory, of the Association; the Constitution of the Associated Students clearly states in Article II Section 5 that The Senate shall have the power of impeachment, The Senate shall have the power to 13

14 try all impeachments, and Judgment in cases of impeachment shall not extend further than removal from office, and disqualification to hold any office of honor, trust, or profit under the Associated Students. I am having difficulties finding, or understanding, the ability or outlined powers of the Judicial Council to enact such impeachment proceedings when it is clear that The Senate shall have the power to try all impeachments. If this trial were to proceed as directed, I am concerned about the implications of the precedent that would be set regarding the checks and balances of each branch of government in a situation such as this. Further, if the Senate were to follow the directive given by the council, it would be unable to give its proper due process to such a trial, as previously outlined. Thus, my final concern is the following: 1) Does the Judicial Branch hold the power to enact impeachment proceedings in the Senate? Again, I write this only to ensure that proper procedures are being followed, across all branches. As the leader of the legislative branch, it is my duty to ensure that the governing documents of our Association are upheld within our framework. I hold these positions, within every branch, to the highest of standards, and thus am requesting your opinion to ensure that proper procedures as outlined in Statute, from all branches, are followed. Please see my request for your opinion on the following, as stated earlier in this memo: 7) The statutory authority that the Judicial Council holds to enforce emergency injunctions that are not preliminary as outlined in SAS Rule 3.f.1. 8) The insinuation from the Judicial Council that appointing executive officers as scheduled on April 29 th /30 th through Oversight and Senate would lead to irreparable harm to the Association, and is being used as justification to issue such an emergency injunction (even though it is outlined specifically for a emergency preliminary injunction ); 9) The actual occurrence of an attempt by a Justice to contact the opposing party of the trial, as outlined in SAS Rule 3.f.1.iii. 10) I will be violating proper procedure and due process for the impeachment of an elected official if I follow the directive given to me by the Judicial Council. 11) To my knowledge, proper notice and reasoning, as outlined in NRS , has not been given to the party involved as of yet. 12) Does the Judicial Branch hold the power to enact impeachment proceedings in the Senate? Given the sensitivity of the subject and that it is nearly the end of the academic year, I am requesting that an opinion on the matter is sent to myself at your absolute earliest convenience, so that ASUN dealings are not delayed any further than they already have been. Until I receive an opinion on the 14

15 legality of this case and on the above concerns, I will not be agendizing any items for an impeachment trial. Thank you. 15